Personal Care and Other Services

For every quarter, the quarters section lists the orders in force on the quarter's first and last day, by issuer, date and terms, with exhibit identifiers, and the fifty-State and metropolitan tables on this page tabulate them. For the third quarter of 2021 alone the list runs to the federal conveyance, workplace, entry and border orders, the CMS visitation memorandum, the workplace standards of three States, the indoor face-covering orders of seven States, the District and the Navajo Nation and of more than twenty metropolitan areas, occupational-health and airborne-transmission controls enforced against the premises, Puerto Rico's vaccination-or-testing order on every salon worker, the licensing waivers of California and Pennsylvania, and the school, health-care, quarantine and court orders of most States.²³¹ A form sentence that no orders were in effect is not the "case-by-case" determination the United States described to the District Court.²³²

The sentence describes a quarter that did not occur, and the Service's records, whatever they contain, do not contain the Federal Register or the Illinois Register.

The word "essential" is not in the statute. The federal list and the State orders that adopted it treated laundries, funeral homes and household repair as essential and salons and grooming as not; the designation permitted the laundry to open its doors and exempted it from nothing else: not the stay-home order that emptied its store, not the closure orders that emptied its hotel, restaurant and office accounts, not the face-covering orders, not the workplace standards, not the Healthcare Emergency Temporary Standard.²³³ The Notice itself provides that an employer so designated "may be considered to have a partial suspension of operations if, under the facts and circumstances, more than a nominal portion of its business operations are suspended by a governmental order," and that "an essential business that is permitted to continue its operations may, nonetheless, be considered to have a partial suspension of its operations if a governmental order requires the business to close for a period of time during normal working hours"; the United States told the District Court that an employer "could be considered to have a partial suspension due to the governmental order if it was required to suspend certain operations for certain purposes."²³⁴ As to the salon, the barbershop and the grooming shop, the position is factually incorrect: they were named as non-essential and closed in forty-six States and the District, and the Notice's own Example 1 to Q&A-10 lists "barber shops, hair salons, tattoo parlors ... waxing salons" among the non-essential businesses whose closure makes their employers eligible.²³⁵ The designation was a permission to operate under the orders, not an exemption from them. An employer that "remained open" under an order that fixed how open it could be was partially suspended by that order.

The statute says nothing of the source or addressee of the order; it asks whether the order limited "commerce, travel, or group meetings." The Notice's own list of qualifying orders includes "A State's emergency proclamation that residents must shelter in place" and "An order from a local official imposing a curfew on residents," both addressed to the public, and the United States quoted that list to the District Court as the statute's meaning and told the Ninth Circuit that a business "may be suspended 'due to' a government order addressing a third party."²³⁶ The orders that reached this industry were, moreover, directed at business operations in terms: "cosmetology shops; barber shops; beauty salons ... nail salons ... spas ... massage parlors, tanning salons, tattoo parlors" were ordered closed; "[b]usinesses or organizations that perform close-contact personal services shall not be open to members or the public"; a reopening salon "must ensure at least six feet of social distancing between operating work stations"; and Texas's order to the public that "people shall avoid ... visiting ... cosmetology salons" named the salon as the place the public was to avoid.²³⁷ The position rewrites the statute and misdescribes the orders.

"Comparable operations" and "telework" are not in the statute; Tri-State defines a partial suspension as a temporary delay, interruption or termination of a portion of the business, and a haircut, a manicure, a massage, a tattoo, an embalming, a dry-cleaning route, a grooming and an appliance repair cannot be teleworked.²³⁸ The Notice's own words bear this out. Q&A-16 provides that where "the employer's physical work space is so critical to its trade or business operations that tasks central to the trade or business's operations are unable to be performed remotely, then this factor alone indicates that the employer is not able to continue comparable operations"; Q&A-15's Example 2 treats a physical-therapy facility, whose "workplace, including access to physical therapy equipment, is central to its operations," as partially suspended although it "moves to an online format" and serves some of its patients remotely; and Q&A-15's second paragraph provides that where "the closure of the workplace causes the employer to suspend business operations for certain purposes, but not others, it may be considered to have a partial suspension of operations due to the governmental order."²³⁹ The chair, the table, the grooming room, the preparation room and the laundry plant are the physical-therapy room of Example 2. Where a State ordered the booking desk and the office to telework (Kentucky, Illinois, Oregon, Pennsylvania, Michigan), the telework was the modification the order compelled, and a compelled modification of a more than nominal portion is a partial suspension, which is what Q&A-17 also says.²⁴⁰ The position substitutes a word Congress did not write for the one it did, and applies it to an industry whose product is performed by hand on a customer in the room.

Q&A-13 addresses an employer that is "not required to close its locations or suspend its operations" and that "suspends its operations due to the lack of demand." This analysis relies on no reduction in demand. It relies on orders that closed the salon by name, capped the funeral, closed the hotel and restaurant accounts of the laundry, barred the technician from the home, closed the grooming shop with non-essential retail, placed every operator and customer under face-covering requirements, and confined the workforce, and it relies on those orders as orders limiting commerce, travel and group meetings under the statute's text, Q&A-12's logic and the United States' admission that a third-party order counts.²⁴¹ A stay-at-home order on the customer base is itself an order limiting commerce, and the commerce it limited was this industry's; Q&A-13's own example describes the order as one that "limits travel." Q&A-13's exclusion was, moreover, confined in April 2020 to "an essential business that is not required to close its physical locations or otherwise suspend its operations" and to a suspension claimed "for the sole reason" of the customers' order; the Notice extended it to every employer and to any "reduction in demand" on March 1, 2021, in a document the United States has represented has no force of law.²⁴² The Service's invocation of Q&A-13 against an industry whose premises were closed by name misdescribes both the orders and the industry.

A salon that closed because Executive Order 107 ¶ 9 ordered it closed, that reopened by appointment because Kentucky's requirements said "provide services by appointment only," that spaced its chairs six feet because GA-21 ¶ 12.a required it, that stopped performing facials because New York City's Emergency Executive Order 130 prohibited them, and that required a face covering of every customer in August 2021 because Illinois' Executive Order 2021-20 required it, and enforced the requirement because Executive Order 2021-22 made enforcement the employer's duty, did nothing voluntary. Q&A-14 by its own terms reaches only a suspension "not due to a governmental order"; every modification relied on here is traced to an order with an exhibit identifier.²⁴³ Where an employer adopted a nationwide policy to comply with the orders of the jurisdictions that bound it, Q&A-20 makes it eligible "with respect to all of its operations in all locations."²⁴⁴ A modification traced to an order with an exhibit identifier is not voluntary, and the position that it was describes an employer whom no order reached; in this industry there was none.

No employer in the eight States stated in the layers section answered that description in any of the six quarters. The reopening orders permitted operation only on conditions with the force of law: GA-21, GA-28 and GA-29 under the offense of Government Code § 418.173; Executive Order No. 154 under a statute that made the orders "binding upon each and every person within this State"; Executive Order 20-120 under § 252.50; the Safe Activities regulation under §§ 23-1-21 and 23-1-25.²⁴⁶ The standing statutes commanded the same conduct independently: in Texas, "Each person shall act responsibly to prevent and control communicable disease," and "Each employer shall" provide a place of employment "reasonably safe and healthful"; in the other seven, the safe-workplace statutes quoted in the layers section; in all eight, the general duty clause, 29 U.S.C. § 654(a)(1), enforced by citation from September 2020.²⁴⁷ The legislatures then fixed the standard of care as compliance with governmental standards, guidance and protocols, Texas for every action commenced on or after March 13, 2020.²⁴⁸ The safe-workplace statute had no COVID-19 content until the health authorities said what a safe salon, laundry or preparation room required; the measures were taken because those directives defined the duty and would not have been taken without them. "Due to" is but-for causation (Tri-State, ECF No. 38, at 17-19), and the causation here runs from the command to the measure without an intervening choice. The Notice's own words bear this out: a modification "required by a governmental order as a condition of reopening" is a partial suspension due to the order (Q&A-18, at 930). A statute that commands conduct is an order from an appropriate governmental authority, and a legislature, a health department, a labor department and an occupational-safety agency are each such an authority. The Service's premise, that no command reached the employer, fails wherever one did, and in this industry one did everywhere.

The ten percent figure is, in the United States' words, "not determinative," "[e]ffectively ... a safe harbor," "not an eligibility requirement," "a quintessential safe harbor," "a safe harbor rather than a hard floor"; the District Court held it "is not an exclusionary cut-off point"; and Tri-State held that the Notice "provides a method for the test to be met not as a requirement to meet the test" and that reading it as a requirement "would read requirements into the statute that do not exist."²⁴⁹

The showing for this industry exceeds the safe harbor many times over: a salon closed for four to fourteen weeks of a thirteen-week quarter lost far more than ten percent of its hours; a salon at twenty-five or fifty percent occupancy, by appointment, with no waiting room and no facial services, operated at a fraction of its 2019 chair-hours for the whole of the winter of 2020-21; a funeral home capped at ten mourners lost the service, the viewing and the repast that are its revenue; a commercial laundry whose hotel accounts closed lost the linen volume that its shifts were built to carry.²⁵⁰ The Notice's own Q&A-18 lists "requiring services to be performed only on an appointment basis (for businesses that previously offered walk-in service)" and "limiting occupancy to provide for social distancing" among the modifications "required by a governmental order as a condition of reopening," and every reopening order in this industry compelled at least one of them.²⁵¹ The position applies as a floor a figure the United States has told two federal courts is not one, to an industry whose suspension was written into the orders in percentages.

The modifications relied on here are closure, appointment-only service, one customer per operator, six feet between stations, the elimination of waiting rooms, occupancy caps of twenty-five to fifty percent, the prohibition of every service performed on an uncovered face, the capping of every funeral, the exclusion of contract barbers from every nursing home and, in Puerto Rico, vaccination or weekly testing of every salon worker; the face-covering orders of July through September 2021 are relied on as what they are: occupational-health and airborne-transmission controls, orders from appropriate governmental authorities enforced by fine, license sanction and closure, that conditioned every premises in the States and metros that issued them and placed on the operator a duty to verify, post and enforce. Q&A-18 itself lists "requiring employees and customers to wear face coverings" among the modifications "required by a governmental order as a condition of reopening a physical space for business or service to the public," provides that a modification "that results in a reduction in an employer's ability to provide goods or services in the normal course of the employer's business of not less than 10 percent will be deemed to have more than a nominal effect," and confines its final sentence to "mask requirements" as "modifications altering customer behavior" and to rules "that require employees to wear masks and gloves while performing their duties"; the United States told the District Court that face masks bear on operations.²⁵²

In this industry the customer's face is the workplace. An order that covers the customer's face bars the lip, nose, beard, facial and face-massage services in terms, as Illinois, New York City, Chicago, Michigan, Rhode Island, Alaska and Sacramento wrote into their orders, and conditions every other service on a covering the operator must supply, verify, post and enforce on pain of closure.²⁵³ Tri-State held that "the required protocols and procedures to comply with the Proclamation" were suspensions the order caused and refused the argument that they were nominal.²⁵⁴ A salon at fifty percent occupancy with its waiting room closed is not a modification with a nominal effect; it is a fifty-percent closure of the chairs and a hundred-percent closure of the walk-in book.

This analysis relies on no bare declaration as a suspending order. Each instrument in the layers and quarters sections limited commerce, travel or group meetings in terms. Where an emergency declaration is cited, it is cited as the instrument under which those orders were issued and continued, or as proof of a period, which the Notice's own text allows.²⁵⁵ The ground answers an argument this analysis does not make.

Chief Counsel memoranda "may not be used or cited as precedent," by their own legend, which Tri-State quoted in declining to rely on the Chief Counsel memorandum the United States offered there.²⁵⁶ The counterparties of this industry are the hotel, restaurant, office, gym, school and event venue whose linen the laundry cleans, the hospital and nursing home whose residents the barber serves and whose decedents the funeral home removes, the cemetery, the church and the courthouse, the cosmetology school and the licensing board, and the plant that makes the casket and the color; each was closed or conditioned by an order with a date and an exhibit identifier, and nothing here is attenuated.²⁵⁷ The United States told the Ninth Circuit that the supplier rule "never even mentions a 'physical[ ] clos[ure]' order against the supplier," and told the District Court that an employer is eligible where its operations are suspended "because of the supplier's inability to deliver."²⁵⁸

Causation is but-for on the United States' own agreed definition: absent the order closing the hotel, the linen came; absent the order barring non-essential visitors, the barber entered.²⁵⁹ The position describes an attenuated chain this analysis does not rely on; a hotel closed by proclamation is not a supply-chain effect, and a Chief Counsel memorandum that cannot be cited as precedent is not the statute.

For the third quarter of 2021 the orders had not lifted: the third quarter of 2021 in the quarters section, subpart B, lists, with dates, the orders in force on July 1 and September 30, 2021, and the paragraph that follows it names the expired instruments on which the proof does not rest. Where the position means that a suspension compelled by an order that expired on June 11 or June 30 ended at midnight, it misreads the clause, which asks whether the operation "is fully or partially suspended during the calendar quarter," and it contradicts Tri-State's definition of a suspension as a "delay," Q&A-22's whole-quarter rule and Q&A-16's transition rule.²⁶⁰ The position mistakes the date an order lapsed for the date the suspension it compelled ended; the clause asks about the second.

The gross-receipts prong is not relied on. The statute makes an employer eligible on either prong, and the United States admitted in Tri-State that the gross-receipts test is "another method to qualify," on which the court held "the fact an employer can be eligible and affected without partial or full suspension is reasonable."²⁶¹ The suspension prong asks about operations, not revenue, and it is satisfied in every quarter. The ground answers a prong this analysis does not invoke; Congress joined the two prongs with "or."

Every instrument this analysis relies on as a suspending order is an order, proclamation, rule, directive, statute or administrative order with the force of law, issued under a recited statutory or constitutional power and enforced by penalty, license or closure.²⁶² Kentucky's requirements say "must" and condition the right "to reopen and remain open" on compliance; Florida's Department of Business and Professional Regulation wrote that "the following restrictions are mandatory"; Texas's Department of Licensing and Regulation's protocols were made "mandatory rules in Dallas County" by county order and were the condition on which GA-21 reopened the trade; New Jersey's Executive Order 154 permitted reopening only "provided that the facility complies with standards issued by the Division of Consumer Affairs and DOH"; Oregon's face-covering rule carries a civil penalty of $500 a day; Chicago's face-covering order carries closure; Mecklenburg's board of health rule carries abatement "up to and including shutting down a facility's operations."²⁶³ Where a State made a guidance document binding by incorporating it into an order, the binding instrument is the order, and it is the order that is cited. The Notice itself provides that whether an instrument is a governmental order "is determined without regard to the level of enforcement."²⁶⁴ The recommendations of the period are described in this analysis as recommendations and ground no finding.²⁶⁵ An instrument enforced by fine, license or closure is not a recommendation, and the position that it is misdescribes every instrument this analysis names.

Agreed. An "order" is "a specific rule, regulation, or authoritative direction : command," including "a ruling or command made by a competent administrative authority," and "[a]n authoritative indication to be obeyed; a command or direction"; the United States agreed in Tri-State that the clause is read by "plain meaning," and the Service's own Chief Counsel defined "order" as "a command or mandate delivered by a government official."²⁶⁶ Every instrument in the findings of the quarters section is a command from a competent authority to do or refrain from doing something on pain of sanction: to close, to space, to book by appointment, to cover the face, to admit fewer than ten. That is the ordinary meaning, and it is satisfied.