Personal Care and Other Services

The six quarters

In each of the six calendar quarters from April 1, 2020 through September 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19 caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in personal care and other services throughout the United States. This section states, for each quarter, the orders in force on the quarter's first and last day, how they reached the functions, and the finding in Tri-State's terms. The third quarter of 2021 is written as a self-contained section.

The second quarter of 2020

On April 1, 2020 every hair salon, barbershop, nail salon, day spa, tattoo, tanning and massage establishment in forty-six States and the District of Columbia was closed to the public by an order that named the trade, and in Missouri, Nebraska, Utah and South Dakota by the county and city orders of the largest markets. The Northeast was closed by New York's Executive Order 202.7 (from 8:00 p.m. March 21), New Jersey's Executive Order 107 ¶ 9 (from 9:00 p.m. March 21), Pennsylvania's life-sustaining-business orders (from 8:00 p.m. March 19), Massachusetts' Order No. 13 (March 24), Connecticut's Executive Order 7G (March 20), Rhode Island's Executive Order 20-09 (March 23), Vermont's Addendum 4 (March 23), New Hampshire's, Maine's and Delaware's orders and the District's Mayor's Order 2020-053 (March 25).¹¹⁴ The South was closed by Texas's GA-14 and the Dallas, Harris, Tarrant, Fort Bend, Bexar and Denton County orders (March 23-25; statewide April 2), Florida's Executive Order 20-91 (April 3), Georgia's Executive Order 04.02.20.01 (April 3), Tennessee's Executive Order 21 (March 30), Alabama's State Health Officer order (March 28), South Carolina's Executive Order 2020-17 (April 1), Mississippi's Executive Order 1466 (April 3), Arkansas' Department of Health directive (March 25), Louisiana's Proclamation 33 JBE 2020 (March 23), Kentucky's Cabinet order (March 18), Virginia's Executive Order 53 (March 24), Maryland's Order 20-03-23-01 (March 23), North Carolina's Executive Order 120 (March 25) and West Virginia's Executive Order 6-20 (March 20).¹¹⁵ The Midwest was closed by Illinois' Executive Order 2020-10 (March 21), Michigan's Executive Order 2020-20 (March 22), Ohio's Director's Order (March 19), Minnesota's Executive Order 20-04 as clarified by 20-08 (closure from 5:00 p.m. March 17), Wisconsin's Emergency Order #12 (March 25), Indiana's Executive Order 20-08 (March 24), Iowa's Proclamation (March 22), Kansas's orders (March 30), North Dakota's Executive Order 2020-06.1 (March 28) and Nebraska's Directed Health Measure (April 10), with St. Louis, Kansas City, Boone County and Springfield closing Missouri's markets from March 23-26.¹¹⁶ The West was closed by California's Executive Order N-33-20 and the Bay Area and Los Angeles County shelter orders (March 16-19), Washington's Proclamation 20-13 (March 16), Oregon's Executive Order 20-12 (March 23), Colorado's Public Health Order 20-22 (March 19), Nevada's directives (March 20), New Mexico's public health order (March 24), Arizona's orders (March 31), Alaska's Health Mandate 009 (March 24), Wyoming's Statewide Public Health Order #3 (March 25), Montana's directive (March 28), Idaho's order (March 25), the Utah county health orders (March 23 to April 2) and Hawaii's county stay-at-home orders (March 22-25).¹¹⁷ Funerals were capped at fewer than ten in Wisconsin, at ten in Illinois, Michigan, New Jersey, Massachusetts, Delaware, Minnesota, Virginia, Kentucky and Kansas, and barred as non-essential gatherings of any size in New York; pet grooming closed with non-essential retail in every stay-home State; repair technicians were barred from homes for non-emergency work in Michigan, New York, New Jersey and California; and every laundromat and dry cleaner, open under the federal list, served a customer base ordered to stay home and commercial accounts closed by order.¹¹⁸ The federal layer supplied the national emergency, the public health emergency, the essential-workforce list that every adopting State made a closure, the leave mandate from April 1, the Defense Production Act orders and the scarce-materials designation on the masks and gloves every reopening order required.¹¹⁹ The metros went further: Somerville and Brockton closed personal care March 22; Fort Bend County named the trades under a $1,000 fine; DeKalb capped them at ten; Wake County, Salt Lake County and Cobb County closed them by name; Dallas County ordered customers of reopened retail that they "may not enter the premises."¹²⁰

The reopening as an order

Between April 24 and June 30, 2020 the shops reopened in every State but under orders that rewrote how the service was performed. Georgia's Executive Order 04.20.20.01 reopened them April 24 under twenty enumerated requirements; Oklahoma April 24 by appointment; Alaska April 24 at one customer per provider; Texas May 8 under GA-21 ¶ 12.a ("must ensure at least six feet of social distancing between operating work stations") and the Department of Licensing and Regulation's protocols, made "mandatory rules" in Dallas County; Arizona May 8 by appointment with face coverings; Nevada May 9 by appointment; Florida May 11 only for salons "that adopt appropriate social distancing and precautionary measures as outlined by the Department of Business and Professional Regulation," whose measures were "mandatory ... All customers will be by appointment only ... No group appointments are permitted. Masks must be worn by all employees"; Ohio May 15 ("must require all employees to wear facial coverings"); Louisiana May 15 at twenty-five percent; Kentucky May 25 at thirty-three percent, and from June 25 at fifty percent under Version 2.0 (Ex. SEC-18-039), under requirements to "eliminate the use of any waiting areas, provide services by appointment only"; Illinois May 29 with no mask-off services; New York May 29 at fifty percent under the Department of State's Interim Guidance; the District May 29 by appointment with one customer per stylist; Vermont May 29 by appointment; Minnesota June 1 at twenty-five percent; Delaware June 1 at thirty percent; Connecticut June 1 at fifty percent by appointment; Michigan June 15; New Jersey June 22 "provided that the facility complies with standards issued by the Division of Consumer Affairs and DOH"; Massachusetts hair May 25 and close-contact services June 22; New York City hair June 22 and other personal care not until July 6.¹²¹ On June 30, 2020 nail, massage and tattoo services remained closed in New York City and in California counties without variance, and every reopened shop in the country operated under at least one of appointment-only, capacity, station-spacing, face-covering or mask-off-service conditions, the workplace infection-prevention and exposure-control requirements written into the reopening orders.¹²²

SL was closed by name for four to fourteen weeks and then conditioned on the service itself. RT closed with the sales floor and reopened under retail caps and curbside rules. CL stayed open while its hotel, restaurant, office and school accounts were closed and its retail customers ordered home. FH operated under funeral caps of ten and, in New York, a bar on any non-essential gathering. PS closed with non-essential retail and reopened on its own track under curbside and appointment rules. RP was barred from homes for non-emergency work. HR lost its schools and examinations. OP was ordered remote where the State ordered telework. WF lost its schools and child care and carried the leave mandate. CB was ordered to stay home and to "avoid ... visiting ... cosmetology salons."¹²³

The third quarter of 2020

On July 1, 2020 every reopened salon in the country operated under conditions on the service: Illinois' Phase 4 guidelines (fifty percent; mask-off services only under employee mask and eye protection; "[a]ll employees who can work from home should continue to do so"), New York's fifty percent with no mask-off services, Kentucky's fifty percent and appointment-only rule, Texas's six-foot station rule and protocols, Georgia's twenty requirements, Florida's mandatory measures to September 25, Washington's Phase 2 requirements, New Jersey's Division of Consumer Affairs standards, Connecticut's, Massachusetts', Rhode Island's, Pennsylvania's and Michigan's sector standards, and the appointment-only rules of Arizona, Maryland, New Hampshire and the District.¹²⁴ On July 13, 2020 California's State Public Health Officer closed indoor operations of "personal care services (including nail salons, massage parlors, and tattoo parlors), hair salons and barbershops, and malls" in thirty-two counties holding most of the State's population; outdoor hair services were allowed from July 20; indoor hair salons reopened August 31 under the Blueprint "with modifications" and personal care September 22 by county tier; Los Angeles County, Sacramento County, San Diego County and the City of Los Angeles implemented the closure by their own orders on July 14-16.¹²⁵ New York City reopened barbershops, salons and spas in Phase 3 on July 6, 2020, and by Emergency Executive Order No. 130 of July 7 prohibited every "personal care service[] that require[s] customers to remove face coverings, including but not limited to, lip/nose piercings, face massages, facials, and lip/nose waxing."¹²⁶ The statewide face-covering orders, occupational-health and airborne-transmission controls that bound operator and customer alike in every chair, multiplied in the quarter: Texas's GA-29 (July 3), Kentucky's Executive Order 2020-586 (July 10), Louisiana's 89 JBE 2020 (July 13), Colorado's D 2020 138 (July 16), Arkansas' Executive Order 20-43 (July 20), Indiana's Executive Order 20-37 (July 27), Michigan's Executive Order 2020-147 (July 13), Ohio's (July 23), Pennsylvania's Secretary's order (July 1), Oregon's statewide indoor requirement (July 1), Washington's Secretary of Health Order 20-03 (June 26), North Carolina's Executive Order 147 (June 26), Minnesota's (July 25), Wisconsin's Emergency Order #1 (August 1), Vermont's (August 1), Maine's (July 8), the District's Mayor's Order 2020-080 (July 22) and Hawaii's Ninth Supplementary Proclamation, joining those already in force in New York, New Jersey, Massachusetts, Connecticut, Rhode Island, Maryland, Delaware, Illinois, New Mexico, Nevada, California and Virginia, so that by September 30, 2020 face-covering requirements bound salons in thirty-four States.¹²⁷ The metros imposed those controls earlier and more strictly, and placed the duty on the business: Jefferson Parish from July 1 with the $500 fine and six months' confinement of La. R.S. 29:727(G) running against the business; East Baton Rouge from July 3 with its "No Mask - No Service" policy naming salons; Savannah from July 1 ("[a]ll restaurants, retail stores, salons ... MUST require their employees to wear a face covering at all times while having face-to-face interaction with the public"); Harris County, Dallas County, Tarrant County and Fort Worth from June 22-26 with health-and-safety-policy mandates on every commercial entity serving the public; Maricopa County, Tucson, Mesa and Tempe from June 18-22; Cincinnati by ordinance from July 9; Columbus from July 2 and 7 by proclamation and ordinance reaching personal care and grooming by name; Minneapolis from May 26 with its employer duty.¹²⁸ Funerals ran under caps in New Jersey (twenty-five percent up to 150 from August 3), Washington (ceremonies only; receptions barred July 23 to September 17), Kentucky (fifty percent), Oregon and Minnesota; Nebraska's Directed Health Measures required face coverings of salon staff and patrons; Chicago barred mask-off services from July 24.¹²⁹ The federal leave mandate ran throughout, the public health emergency was renewed July 23, and the PPE allocation rule was extended August 10, 2020.¹³⁰

SL operated in every State under at least one condition on the service and in California's thirty-two counties, Los Angeles, Sacramento and San Diego was closed indoors again for six to ten weeks. RT reopened under the retail caps. CL's hotel and restaurant accounts ran at the capacity of the dining-room orders and its office accounts under telework orders. FH ran under percentage caps in five States and under face-covering orders everywhere. PS operated under appointment and curbside rules. RP entered homes under the household screening rules of Michigan's June 9 guidelines and Detroit's later order. OP was ordered remote in Illinois and Kentucky. WF carried the leave mandate and the school year that opened remote in the largest districts. CB wore a face covering by order in thirty-four States.¹³¹

The fourth quarter of 2020

On October 1, 2020 the reopening conditions of the third quarter remained in force in every State, and the winter re-tightening began within the week. New York's Cluster Action Initiative (October 6) closed personal care in orange zones and every non-essential establishment in red zones, with Brooklyn, Queens and then Buffalo (November 20 to December 14) in the zones.¹³² Michigan's MIOSHA emergency rules (October 14) bound every shop, and when the Supreme Court of Michigan voided the Governor's orders on October 2 the Detroit, Wayne County and Oakland County health officers re-imposed the face-covering, gathering and screening rules as local law within a week; the Department of Health and Human Services' orders of October 29 and November 15 made personal care appointment-only with face coverings and no mask-off services.¹³³ Illinois' Executive Order 2020-73 (Tier 3, effective November 20) cut personal care to twenty-five percent and barred every service requiring mask removal.¹³⁴ Washington's Proclamation 20-25.8 (November 17) cut personal services to twenty-five percent; Colorado's Level Red (November 20) cut them to twenty-five percent and Purple closed them; New Mexico closed close-contact businesses and animal grooming from November 16 to 30 and then capped them at twenty-five percent in red counties; Massachusetts went to forty percent December 13 and twenty-five percent December 26; New Jersey cut them to twenty-five percent November 12; Pennsylvania's mitigation and enforcement order of November 23 required that "[u]nless impossible, all businesses must conduct their operations remotely" and its order effective December 12 closed indoor dining, gyms and entertainment venues, the repast and the laundry's accounts, until January 4, 2021 while personal care remained at fifty percent by appointment (Ex. PA-028); Minnesota's dial-back (November 20) closed the salons' restaurant and event counterparties; Oregon's freeze (November 18 to December 2) capped funeral homes, cemeteries and mortuaries at twenty-five percent; Delaware capped funerals at thirty percent up to fifty; New Jersey held funerals at twenty-five percent up to 150.¹³⁵ On December 3, 2020 California's Regional Stay at Home Order closed personal care services entirely in regions below fifteen percent ICU capacity, Southern California and the San Joaquin Valley from December 6 and the Bay Area from December 17, a closure that ran to January 25, 2021; Los Angeles County's December 30 order recited "personal care closed"; San Diego County's, Sacramento County's and San Francisco's orders implemented it.¹³⁶ The metros re-tightened before their States: Montgomery County, Maryland cut personal services to one customer per 200 square feet or twenty-five percent from November 10 and suspended indoor dining December 15; Philadelphia's Fall/Winter Order (November 20) required that office work "must generally continue to be conducted remotely"; St. Louis County's Safer At Home Order (November 17) limited every business serving the public to twenty-five percent; Johnson County, Kansas confined salons, barbers, nail salons and tattoo parlors to pre-scheduled customers from November 16; Denver's Level Red order cut offices to ten percent and retail to fifty; Boston, Somerville, Cambridge and Brockton rolled back to Phase II Step 2 from December 16-26; Chicago's Tier 3 (November 20) cut personal care under the capacity guidelines and imposed an 11:00 p.m. curfew on every non-essential establishment; Shelby County ordered salons appointment-only from December 26.¹³⁷ The federal leave mandate ran to December 31, 2020; the public health emergency was renewed October 2; the PPE allocation rule was extended December 31 to June 30, 2021.¹³⁸ The statewide face-covering orders of thirty-four States and the District, airborne-transmission controls binding every premises and every person in it, ran on; North Dakota's (order of November 13, effective November 14, with the duty on every business to require the covering of its workers, customers and visitors) and West Virginia's broadened order (November 13) were added.¹³⁹

SL was closed again in California's three regions, New Mexico and New York's zones, cut to twenty-five percent in Illinois, Washington, Colorado, Massachusetts, New Jersey, Montgomery County, St. Louis County and Chicago, and made appointment-only with no mask-off services in Michigan and Johnson County. RT followed the retail caps. CL's accounts were re-closed in California, Minnesota, Michigan, Washington, Pennsylvania, New York City, Illinois and Oregon. FH was capped in Oregon, Delaware, New Jersey and Kentucky. PS was closed in New Mexico's reset. OP was ordered remote in Pennsylvania, Illinois, Michigan and Philadelphia. WF carried the leave mandate to December 31 and a remote school year. CB wore a face covering by order in thirty-six jurisdictions.¹⁴⁰

The first quarter of 2021

On January 1, 2021 the winter orders of the fourth quarter were in force in every re-tightening jurisdiction: California's regions closed to January 25; Illinois' Tier 3 to January 15-22; Michigan's appointment-only and face-covering rules to March 29; Washington's twenty-five percent to March 22; Colorado's Level Red to January 4 and the dial thereafter; New Mexico's county colors; Massachusetts' twenty-five percent to February 8, 2021 (Order No. 59 as extended, Ex. MA-040), forty percent to March 1 and fifty percent thereafter, the 9:30 p.m. closing having ended January 25 (Ex. MA-042); New Jersey's twenty-five percent from November 12, 2020 (Ex. NJ-037), thirty-five percent from February 5, 2021 (Executive Order No. 219, Ex. NJ-042) and fifty percent from March 19, 2021; Pennsylvania's fifty percent and telework mandate to April 4; Montgomery County's twenty-five percent to March 25; St. Louis County's Safer At Home series to May 3; Boston's and Cambridge's rollbacks to January 27 and February 8; Chicago's Tier 3 to January 23; Shelby County's appointment rule to January 22; and Texas's GA-32 fifty-percent cutbacks in the metros with high hospitalizations until GA-34 ended every operating limit on March 10, 2021.¹⁴¹ Maryland's capacity limits ended March 12; New Jersey raised personal care to fifty percent March 19; Connecticut went to seventy-five percent by appointment; New York, Rhode Island (one customer per fifty square feet), Oregon (county levels), Colorado (the dial to April 16), New Mexico (county colors), Hawaii (Tier 2 to February 24, then Tier 3) and the District (appointment-only, one customer per stylist, to May 21) kept capacity, distancing and face-covering conditions on the function through the quarter.¹⁴² Virginia's permanent workplace standard (16VAC25-220, January 27, 2021), Cal/OSHA's emergency standard (from November 30, 2020), Oregon OSHA's rule and MIOSHA's rules bound every employer in those States as an employer.¹⁴³ The federal conveyance order took effect February 1, 2021 on every bus, train, ferry and ride-share the workforce used, enforced by the Transportation Security Administration; Executive Order 13991 and OMB M-21-15 imposed face coverings and distancing in, and capped the occupancy of, every federal building; the pre-departure testing order (issued January 25, effective January 26) and Proclamation 10143 (January 25) governed the traveler; the public health emergency was renewed January 7.¹⁴⁴ The metros held on: Detroit's October 9 order, Wayne County's and Oakland County's ran to the State's June 22 rescission; Johnson County's health officer re-imposed appointment-only service March 25; New Orleans moved to Modified Phase Three (seventy-five percent) March 12; St. Louis City held bars, restaurants and venues at fifty percent with a midnight close from March 8; Denver's Face Coverings Order (January 20), an airborne-transmission control on every indoor public place, required a face covering of everyone three and older; Philadelphia's Spring Order (March 1) required face coverings regardless of vaccination status together with its capacity and safety-plan duties on every business; Honolulu moved to Tier 3 February 25 (gatherings of ten).¹⁴⁵

SL was closed in California to January 25 and in New York's zones, at twenty-five percent in Illinois to January 22, Washington to March 22, New Jersey to February 5 (thirty-five percent to March 19), Massachusetts to February 8 (forty percent to March 1) and Montgomery County to March 25, at fifty percent in Pennsylvania, Connecticut (to March 19), New York, Kentucky, Louisiana, Massachusetts (from March 1) and St. Louis County, appointment-only in Michigan, the District and Johnson County, and under face-covering requirements everywhere. RT followed the retail caps. CL's accounts reopened at the capacity steps of the dining-room and office orders. FH ran under the winter gathering caps. PS operated under appointment rules. OP was ordered remote in Pennsylvania to April 4 and Michigan to May 24. WF rode under the federal conveyance order from February 1 and carried a school year that was remote or hybrid in most large districts. CB was under face-covering orders in thirty-nine States and the District at the peak.¹⁴⁶

The second quarter of 2021

On April 1, 2021 capacity, distancing and face-covering conditions on the industry's premises were in force in New York, New Jersey, Pennsylvania, Massachusetts, Connecticut, Rhode Island, California, Illinois, Michigan, Minnesota, Washington, Oregon, Colorado, New Mexico, Hawaii, the District, Delaware, Maryland, Virginia, North Carolina, Kentucky and Louisiana, and the workplace standards of California, Virginia, Oregon and Michigan bound every employer.¹⁴⁷ Pennsylvania moved to seventy-five percent April 4 and lifted its orders May 31; Michigan's capacity ended June 1 and its face-covering orders June 22; Denver held personal services at fifty percent and fifty persons from April 16 to May 15 under its own dial order, and the Tri-County, Jefferson County and Boulder County dial orders ran to August 15-16 and September 15; Massachusetts and Connecticut lifted their rules May 19-29; Rhode Island May 21 (its Safe Activities regulation to August 31 and its general face-covering order to July 6); Minnesota and New Jersey May 28 (New Jersey's worksite rules to June 4); Kentucky's requirements June 11; Illinois' Bridge Phase (May 14) and Phase 5 (June 11); New York's caps May 19 and last rules June 15; California's tiers June 15; Nevada's and Washoe County's plans June 1; Washington's and Oregon's June 30; New Mexico's July 1; Hawaii's never in the period; the District's May 21.¹⁴⁸ The OSHA Healthcare Emergency Temporary Standard took effect June 21, 2021 and reached every laundry performing services in a health-care setting; Cal/OSHA readopted its emergency standard June 17; OSHA's National Emphasis Program ran from March 12; the conveyance order and Security Directive 1582/84-21-01A (May 12) ran throughout; Proclamation 10199 added India to the entry suspensions May 4; the public health emergency was renewed April 15; the CDC eviction moratorium ran to July 31; OMB M-21-25 lifted the federal occupancy cap June 10.¹⁴⁹ The metros: Somerville froze the State's twenty-five percent caps locally to May 7 and lifted its orders May 29; Cambridge rescinded its business orders May 6; Boston's modified Phase 4 held gatherings at ten and twenty-five to May 29; St. Louis City and County ended percentage caps May 3 and rescinded their orders May 13-14; Chicago and Cook County held Phase 4 caps to May 14 and the Bridge to June 11; Philadelphia's Spring Order ran to May 20 and its Full Reopening Order took effect June 10-15 binding "[a]ll businesses that are operating within the City of Philadelphia" to isolation, quarantine, contact-tracing and inspection duties; New Orleans kept gathering caps of 250 and 500 and mandatory safety requirements for every business; Honolulu held Tier 3 to June 9 and Tier 4 (gatherings of ten and twenty-five; indoor face coverings) from June 9; Maryland's counties ended their regulations May 28; Montgomery County's Board of Health regulation self-terminated at 6:00 a.m. May 28.¹⁵⁰

SL ran at fifty to seventy-five percent, by appointment in the District and Michigan, and under face-covering and distancing requirements, in twenty-two jurisdictions to dates between May 19 and July 1. RT followed. CL's hospital and nursing-home accounts came under the Healthcare Emergency Temporary Standard June 21. FH ran under the last gathering caps. PS and RP operated under the workplace standards. OP under the Cal/OSHA, Virginia and Oregon standards. WF rode under the federal conveyance order and, in Philadelphia, was quarantined by order. CB was under a face-covering requirement in every jurisdiction that kept one and, in the District, was admitted one per stylist to May 21.¹⁵¹

The third quarter of 2021

Between July 1 and September 30, 2021, the operation of the personal care and other services industry was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19. Orders in force on every day of the quarter governed the industry's commuting workforce, its arriving customers, its imported supplies, its health-care laundry, its workplace inspections, its licenses, its contract barbers' entry into nursing homes and, in Hawaii, its every premises; orders issued inside the quarter made every salon, barbershop, nail salon, laundromat, funeral chapel and grooming shop an indoor public place in which every person wore a face covering by law, under occupational-health and airborne-transmission controls that the issuing authorities enforced against the premises by fine, license sanction or closure, in seven States and the District of Columbia and in more than twenty of the forty largest metropolitan areas, from Los Angeles County on July 17 to Dayton on September 17, and conditioned the employment of every salon, barbershop and spa worker in Puerto Rico on vaccination or weekly testing from August 30. This section is written to be read alone.

A. The Service's premise about the quarter and what the statute asks

The Service's form letter states the premise.

"there were no government orders related to COVID-19 in effect during the quarter(s) you claimed ERC which could have fully or partially suspended your trade or business."¹⁵²

Section 3134(c)(2)(A)(ii)(I) asks whether "the operation of the trade or business ... is fully or partially suspended during the calendar quarter due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes) due to the coronavirus disease 2019 (COVID-19)."¹⁵³ Congress enacted that clause for this quarter on March 11, 2021, five weeks after the federal conveyance order took effect and one day before OSHA's first National Emphasis Program, and on November 15, 2021 it terminated the following quarter and left this one in place.¹⁵⁴ The Notice's rules carry into the quarter by Notice 2021-49: a modification required by order that "has more than a nominal effect on the business operations under the facts and circumstances" is a partial suspension; "requiring services to be performed only on an appointment basis" and "requiring employees and customers to wear face coverings" are such modifications "required by a governmental order as a condition of reopening a physical space for business or service to the public"; an employer that "reduces its operating hours due to a governmental order is considered to have partially suspended its operations"; and an employer suspended "during a portion of a calendar quarter is an eligible employer for the entire calendar quarter."¹⁵⁵

B. The instruments in force from July 1 through September 30, 2021

B-1. The federal conveyance order and its directives (Ex. FED-020; Ex. FED-051; Ex. FED-052). Issuer: the Centers for Disease Control and Prevention under 42 U.S.C. § 264; the Transportation Security Administration under 49 U.S.C. § 114(l)(2). Dates: order effective 11:59 p.m. February 1, 2021, "until further notice"; Security Directive 1582/84-21-01A (May 12 to September 13, 2021) and -01B (announced August 20, 2021; effective September 14, 2021 to January 18, 2022). Operative clause: "Persons must wear masks over the mouth and nose when traveling on conveyances into and within the United States"; "Owner/Operators must require that individuals wear a mask." Enforcement: federal law, with civil penalties. Status: in force July 1 and September 30, 2021. Functions: WF (every stylist, laundry worker, funeral attendant and groomer who commuted by bus, rail, ferry or ride-share), CB (every customer who arrived by transit), SL and CL at every airport and transit hub.¹⁵⁶

B-2. The OSHA instruments (Ex. SEC-18-003; Ex. FED-083; Ex. FED-080; Ex. FED-081). Issuer: the Occupational Safety and Health Administration under 29 U.S.C. § 655(c) and its inspection authority. Dates: DIR 2021-03, the Revised National Emphasis Program, effective July 7, 2021, "effective for no more than 12 months"; the Healthcare Emergency Temporary Standard, 29 C.F.R. § 1910.502, effective June 21, 2021 with compliance dates of July 6 and July 21, 2021, with its inspection procedures directive of June 28, 2021. Operative text: the emphasis program programs inspections in the health-care, meat and poultry, supermarket, warehousing, temporary-help and restaurant industries and unprogrammed inspections on complaint everywhere; the standard binds every employer providing "healthcare laundry services" in a health-care setting to a written plan, patient screening, distancing, barriers, PPE, ventilation, cleaning, exposure notification and paid removal. Enforcement: citations and penalties. Status: in force July 1 and September 30. Functions: CL (every commercial laundry serving a hospital, clinic or nursing home on site), OP, WF.¹⁵⁷

B-3. The federal essential-workforce list, Version 4.1 (Ex. SEC-18-001). Issuer: the Cybersecurity and Infrastructure Security Agency. Date: August 10, 2021. Operative text: names "[w]orkers in laundromats, laundry services, and dry cleaners," mortuary and cemetery workers and household-repair workers; omits salons and grooming. Effect: the continuing State orders that incorporated "the most recent" CISA list carried it as law. Status: in force from August 10. Functions: CL, FH, RP, SL, PS.¹⁵⁸

B-4. The entry, border and pre-departure orders (Ex. FED-207; Ex. FED-208; Ex. FED-233; Ex. FED-234; Ex. FED-235; Ex. FED-256; Ex. FED-257; Ex. FED-258; Ex. FED-042; Ex. FED-038). Issuer: the President under 8 U.S.C. § 1182(f); the Secretary of Homeland Security under 19 U.S.C. § 1318(b); the CDC under 42 U.S.C. §§ 264-265. Proclamations 10143 and 10199 suspended the entry of non-citizens present in the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa and India until Proclamation 10294 revoked them effective November 8, 2021; the land-border notices of July 22 (to August 21), August 23 (to September 21) and September 22, 2021 (to October 21) confined Canadian and Mexican crossings to essential travel; the pre-departure test order governed every arriving air passenger; the Title 42 order was reissued August 2, 2021. Status: in force July 1 and September 30. Functions: CB (the resort spa's, hotel laundry's and airport barber's traveler), CL (imported linen and chemicals), WF.¹⁵⁹

B-5. The State workplace standards (Ex. SEC-10-043; Ex. SEC-19-029; Ex. SEC-09-048; Ex. SEC-10-041; Ex. SEC-12-066). Issuer: the Virginia Safety and Health Codes Board under the Virginia Occupational Safety and Health program; the California Occupational Safety and Health Standards Board; the Oregon Occupational Safety and Health Division. Dates: 16VAC25-220, permanent from January 27, 2021 and amended effective September 8, 2021; 8 C.C.R. § 3205, readopted June 17, 2021; OAR 437-001-0744, adopted May 4, 2021 "until revised or repealed." Operative text: every employer in each State must maintain a written prevention program, screen and exclude exposed employees (with pay in California), require face coverings of the unvaccinated indoors, and test on outbreak: occupational-health and airborne-transmission controls of which the face covering is one. Enforcement: citations and penalties under State law. Status: in force July 1 and September 30 in each State. Functions: SL, CL, FH, PS, RP, OP, WF.¹⁶⁰

B-6. The statewide indoor face-covering orders and the operator duties they carried (Ex. NV-041; Ex. NV-042; Ex. NV-051; Ex. LA-038; Ex. LA-040; Ex. OR-048; Ex. NM-070; Ex. WA-078; Ex. WA-080; Ex. WA-084; Ex. SEC-18-042; Ex. IL-044; Ex. DC-057; Ex. DC-077; Ex. HI-025; and Louisiana's Proclamation 137 JBE 2021, New Mexico's orders of June 30 and August 17, 2021, Illinois' Executive Order 2021-22 and Hawaii's Twenty-First Proclamation and Emergency Proclamation of August 5, 2021). Each is an occupational-health and airborne-transmission control imposed on every indoor premises and every person in it, and each, where its terms so provide, placed on the operator a duty to ensure compliance, post notice or refuse admission. Nevada's Declaration of Emergency Directive 047 (July 27, 2021; effective 12:01 a.m. July 30) required face coverings of every person, vaccinated or not, in public indoor spaces in counties of substantial or high transmission, which included Clark and Washoe; Directive 048 (August 4) defined the covered indoor settings to include breakrooms, hallways and meeting rooms; the Gaming Control Board applied it to every licensed property's salon and spa. Louisiana's Proclamation 137 JBE 2021 (August 2; effective August 4) required face coverings of every person indoors in every business, renewed by 167 JBE 2021 (August 31; effective September 1) (Ex. LA-038) and 181 JBE 2021 (September 28; effective September 29) (Ex. LA-040) to October 27. Oregon's OAR 333-019-1025 (filed August 11; effective August 13) provided that "[i]ndividuals, regardless of vaccination status, are required to wear a mask, face covering or face shield ... when in an indoor space," with the operator's duty to "[e]nsure that employees, contractors, and volunteers comply with this rule within the indoor space" and to post signs, enforced by civil penalties of up to $500 a day. New Mexico's Public Health Emergency Order of June 30 (effective July 1) kept face coverings on the unvaccinated and the COVID-Safe Practices mandatory; its order of August 17 reinstated the indoor face-covering requirement for every person from August 20, extended September 15 to October 15. Washington's Secretary of Health Order 20-03.4 (August 19; effective August 23) provided that "[e]very person in Washington State must wear a face covering ... when they are in a place where any person from outside their household is present," with Proclamation 20-25.15's prohibition on any business admitting an unmasked person and Order 20-03.5 (September 13) extending the rule to outdoor events of 500. Illinois' Executive Order 2021-20 (August 26) provided that "all individuals in Illinois who are age two or over ... shall be required to cover their nose and mouth with a face covering when in an indoor public place" from August 30, and Executive Order 2021-22 (September 3) added the employer's duty to enforce the face-covering requirement in indoor workplaces; Executive Order 2021-23 (September 17) re-issued every order through October 16. The District's Mayor's Order 2021-097 (July 29; effective 5:00 a.m. July 31) provided that "[a]ll persons must wear masks indoors as prescribed by DC Health guidance and regulations," and DC Health's guidance of July 30 named the indoor businesses. Hawaii's Twenty-First Proclamation (June 7) and Emergency Proclamation of August 5, 2021 kept the statewide face-covering requirement and the Safe Travels quarantine-or-test regime in force on every day, and Executive Order 21-05 (August 10) capped indoor gatherings at ten and outdoor at twenty-five statewide. Enforcement: misdemeanor or civil penalty under each State's emergency act. Status: Hawaii's orders and New Mexico's June 30 order in force July 1; each of the others in force September 30, from the dates stated. Functions: SL (every operator and every customer in every chair), CL (every laundromat customer and every route driver), FH (every mourner in every chapel), PS (every grooming lobby), RP (every shop), OP.¹⁶¹

B-7. The States that required face coverings of the unvaccinated or authorized their cities (Ex. CA-036; Ex. AGY-ST-HEALTH-SUBORDERS-110; Ex. CT-050; Ex. CT-052; Ex. CO-041; Ex. CO-053; Ex. CO-091; Ex. NY-134; Ex. ECO-B-054; Ex. NY-073; Ex. SEC-12-067; Ex. SEC-10-031). Each is an occupational-health and airborne-transmission control that the State imposed on the premises through the operator, with the companion duties stated. California's State Public Health Officer's order of June 11, 2021, in force throughout the quarter, made the Department of Public Health's face-covering guidance mandatory by incorporation; the guidance of July 28, 2021 required face coverings of unvaccinated persons in all indoor public settings and put every business, including every salon, to the choice of verifying vaccination, accepting attestation or requiring face coverings of everyone; Cal/OSHA's standard bound the workplace with its written prevention program, screening, exclusion and outbreak-testing duties. Connecticut's Executive Order 13A (August 5) required face coverings of unvaccinated persons indoors and authorized every municipality to impose a universal indoor mandate, and the Department of Public Health's order of August 7 required universal face coverings in listed settings. Colorado's Fourth, Fifth and Sixth Amended Public Health Order 20-38 (issued June 30, July 30 and August 31, 2021; effective July 1, August 1 and September 1) kept face-covering requirements in the settings it named and the Limited COVID-19 Restrictions on every business. New York's 10 NYCRR Subpart 66-3, adopted as an emergency rule May 26, 2021 (Ex. NY-134) and readopted June 23, 2021, bound every business to provide face coverings at its own expense ("Businesses must provide, at their expense, such face coverings") and required face coverings of unvaccinated persons and employees indoors through August 27, 2021, when 10 NYCRR 2.60 (Ex. ECO-B-054) and the Commissioner's Determination on Indoor Masking (Ex. NY-073) succeeded it, with the HERO Act airborne-infectious-disease plans mandatory from August 5 and activated September 6 (Ex. ECO-B-120; Ex. SEC-12-067; Ex. SEC-10-031). Status: in force July 1 and September 30. Functions: SL, CL, FH, PS, RP, OP.¹⁶²

B-8. The metropolitan indoor face-covering orders (Ex. MET-LA-018; Ex. MET-LA-035; Ex. MET-LA-045; Ex. MET-LA-053; Ex. MET-SAC-015; Ex. MET-SFO-071; Ex. MET-SFO-010; Ex. MET-SFO-049; Ex. MET-STL-021; Ex. MET-STL-069; Ex. MET-ATL-063; Ex. MET-MSY-027; Ex. MET-MSY-063; Ex. MET-KC-002; Ex. MET-KC-045; Ex. MET-KC-067; Ex. MET-CHI-049; Ex. MET-CHI-026; Ex. MET-CHI-031; Ex. MET-CHI-041; Ex. MET-DCM-023; Ex. MET-DCM-024; Ex. MET-DCM-047; Ex. MET-BAL-017; Ex. MET-DFW-028; Ex. MET-DFW-030; Ex. MET-DFW-031; Ex. MET-SAT-067; Ex. MET-PHL-019; Ex. MET-PHL-020; Ex. MET-CLT-045; Ex. MET-CLT-054; Ex. MET-CLT-031; Ex. MET-CLT-023; Ex. MET-CLT-001; Ex. MET-CLT-025; Ex. MET-MKE-023; Ex. MET-BOS-063; Ex. MET-BOS-013; Ex. MET-BOS-014; Ex. MET-BOS-150; Ex. MET-BOS-036; Ex. MET-DEN-033; Ex. MET-SEA-002; Ex. MET-CMH-048; Ex. MET-CMH-050; Ex. OH-094; Ex. MET-LAS-006). Each is an airborne-transmission control on every indoor premises open to the public, and each, as its terms recite, placed on the business a duty to enforce, post or verify on pain of fine, license sanction or closure. Issuers: county health officers, boards of health, county judges, county executives and mayors under the health and emergency codes of their States. Los Angeles County's Health Officer ordered face coverings for everyone indoors "regardless of vaccination status" in "all indoor public settings and businesses" from 11:59 p.m. July 17, 2021, and the City of Los Angeles, Long Beach and Pasadena followed on July 17 and 22; Sacramento County ordered face coverings "regardless of vaccination status ... in all indoor public settings, venues, gatherings, and workplaces" from July 30, required every business to enforce the rule on patrons and post signage, declared that the order "takes precedence over the more permissive ETS regarding employee face coverings," and exempted facial services only under stated conditions; the health officers of Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara and Sonoma Counties and Berkeley ordered on August 2 that "businesses are required to implement the indoor face covering order" from 12:01 a.m. August 3, Marin's order naming "offices, retail stores, restaurants and bars, theaters, family entertainment centers, conference centers, and State and local government offices." The St. Louis Health Commissioner ordered from 12:01 a.m. July 26 that "[i]ndividuals, both vaccinated and unvaccinated, age 5 and older ... properly wear a face covering ... while in indoor and enclosed public buildings and spaces"; St. Louis County's parallel order ran from 8:00 a.m. July 26 until the Circuit Court's restraining order of August 3; Atlanta ordered "all persons in a public place, including private businesses and establishments, to wear a mask or a cloth face covering over their nose and mouth when indoors" from July 28 until the Governor suspended the order's application to businesses August 19; New Orleans ordered from 6:00 a.m. July 31 that "[a]ll individuals over the age of 2 ... are subject to an indoor mask requirement and are required to wear a face covering over the nose and mouth: At all times when in indoor spaces outside the household"; Jefferson Parish ordered from August 4 that "[a]ll individuals in unincorporated Jefferson Parish shall be required to wear a face covering over the nose and mouth when indoors in any place outside of a private residence"; Kansas City's Order 21-01 (July 30; effective 12:01 a.m. August 2) and Committee Substitute for Ordinance No. 210694 (August 19) (Ex. MET-KC-002) required that "an individual in an indoor place of public accommodation must properly wear a face covering or mask while performing an activity involving close contact or proximity to co-workers or the public where six feet of separation is not feasible," on pain of a fine of "not less than $25.00 and not more than $500.00" and "suspension or revocation of the Certificate of Occupancy," and Jackson County (August 9) and Wyandotte County (August 6) placed the rest of the metropolitan area under the same requirement, while Johnson County's Board of Health Order No. 001-21 (August 9) required face coverings in every public and private school building through grade six and on every school bus, reaching the workforce's children (Ex. MET-KC-067); Oak Park (August 6, reciting "a 750% increase in COVID-19 cases in July 2021"), Chicago (August 20: "[a]ny individual, regardless of vaccination status ... shall be required to wear a mask when indoors in any public place," with the sanction that "any business that fails to enforce this Order shall be subject to sanctions, including, but not limited to, closure," and masks removable only for shaves and facials) and Cook County (August 23, naming "personal services") placed the Chicago area under the requirement; Prince George's County's Executive Order No. 18-2021 (August 5; effective 5:00 p.m. August 8), recited in Executive Order No. 22-2021 (October 4, 2021) (Ex. MET-DCM-047) and expanded to persons over two by Executive Order No. 21-2021 (September 30), and Montgomery County's Board of Health (August 7: "[a]ll persons in the County over the age of two (2) years old must wear face coverings indoors at any location accessible to the public") (Ex. MET-DCM-023, ¶ 2.a) and Baltimore City (August 10: "indoors at any location other than a private home, including without limitation, ... Personal Services Establishments," enforceable as a misdemeanor with a $200 fine per offense plus $50 per day) placed Maryland's largest markets under the requirement; Dallas County ordered from 11:59 p.m. August 11 that "all commercial entities in Dallas County providing goods or services directly to the public must develop and implement a health and safety policy" requiring "universal indoor masking for all employees and visitors," with a fine "not to exceed $1,000 for each violation," re-issued August 16 "in compliance with the Texas Supreme Court stay order" and never withdrawn; Bexar County's NW-21 (August 11) continued the health-and-safety-policy posting mandate; Philadelphia required from 12:01 a.m. August 12 face coverings in "[a]ny indoor setting" regardless of vaccination status unless the business verified the vaccination of everyone present; Raleigh (August 13), Wake County (by August 16), Orange County (August 11), Charlotte and unincorporated Mecklenburg (August 18) and the Mecklenburg Board of Health Rule of August 31 ("[a]ll businesses, establishments, and public places must require that all persons wear Face Coverings when indoors on their premises," enforceable by misdemeanor and by abatement orders "up to and including shutting down a facility's operations") placed North Carolina's largest markets under the requirement; Dane County ordered universal indoor face coverings from August 19; Somerville from 12:01 a.m. August 20 in every indoor public location; Boston from 8:00 a.m. August 27 whenever indoors "on the premises of a business, club, place of assembly or other place that is open to members of the public," "until rescinded," with its Licensing Board extending the rule to every licensed premises; Brookline August 27; Cambridge September 3, amended September 15, with a $300 fine and personal care establishments named; Boulder County ordered that "[a]ll individuals aged 2 or older must wear a Face Covering while entering or within any Public Indoor Space," vaccinated or not, from 5:00 p.m. September 3 (Ex. MET-DEN-033, ¶ 2.a); King County ordered from September 7 that "[e]veryone 5-years of age and older in King County must wear a face covering within indoor public spaces," including "retail, grocery stores, government buildings, and other businesses"; Columbus by executive order September 10 and ordinance September 14 in every indoor area accessible to the public and every place of business; Dayton from September 17; Clark County, Nevada ordered every employee of every business in indoor public spaces to wear a face covering from midnight July 22, absorbed on July 30 by the State's Directive 047. Enforcement: fines, misdemeanor prosecution, license and occupancy sanctions and closure, as each order recites. Status: Los Angeles County's from July 17; each of the others from the date stated; every one in force September 30 except St. Louis County's (enjoined August 3) and Atlanta's (suspended as to businesses August 19). Functions: SL, CL, FH, PS, RP, RT, OP, CB.¹⁶³

B-9. The sector regulators' instruments (Ex. AGY-ST-TRADE-BOARDS-051; Ex. AGY-ST-TRADE-BOARDS-052; Ex. AGY-ST-HEALTH-BOARDS-039; Ex. AGY-ST-HEALTH-BOARDS-041; Ex. AGY-ST-HEALTH-BOARDS-043; Ex. AGY-ST-HEALTH-BOARDS-040; Ex. AGY-ST-HEALTH-BOARDS-042; Ex. PA-094; Ex. PA-095; Ex. AGY-ST-HEALTH-SUBORDERS-038; Ex. FED-156). California's Department of Consumer Affairs waived license renewal, continuing-education and examination requirements for barbering, cosmetology and funeral licensees by DCA-21-176 (July 2021) and DCA-21-195 (September 28, 2021), reactivation requirements by DCA-21-165 (July 1) and Division 2 renewals by DCA-21-175 (July 26) and DCA-21-194 (September 28), and veterinary telemedicine by DCA-21-173 (July 1) and DCA-21-193 (August 31, 2021); Pennsylvania's Act 21 of 2021 continued the Department of State's cosmetology, barber and funeral-director waivers to September 30, 2021 and Act 73 to March 31, 2022; New Jersey's Department of Health issued its post-emergency protocols for tanning and body-art establishments July 4, 2021; and CMS's QSO-20-39-NH, as revised April 27, 2021, governed every contract barber's and hairdresser's entry into every nursing home and the operation of every in-facility salon on every day of the quarter. Status: in force as stated. Functions: HR, SL, FH, PS.¹⁶⁴

B-10. The counterparty, workforce and court orders (Ex. NJ-055; Ex. NJ-057; Ex. SEC-18-042; Ex. WA-075; Ex. WA-079; Ex. CA-034; Ex. LA-054; Ex. KY-052; Ex. OR-045; Ex. RI-055; Ex. MA-071; Ex. PA-042; Ex. DE-044; Ex. DE-045; Ex. MET-DET-013; Ex. MET-DET-015; Ex. MET-HOU-038; Ex. MET-DEN-024; Ex. MET-DEN-032; Ex. MET-DEN-081; Ex. MET-DEN-082; Ex. MET-DEN-102; Ex. CA-030; Ex. CA-031; Ex. NY-071; Ex. NJ-056; Ex. OR-051; Ex. WA-077; Ex. MA-067; Ex. MA-069; Ex. CT-055; Ex. MD-060; Ex. RI-072; Ex. CO-055; Ex. MET-LA-023; Ex. MET-PHL-021; Ex. MET-DEN-023; Ex. RI-059; Ex. RI-060; Ex. RI-066; Ex. MET-SAN-023; Ex. MET-SAN-024; Ex. MET-LA-021; Ex. MET-LA-022; Ex. AR-073; Ex. TX-040; Ex. ECO-C-070; Ex. VA-041; Ex. VA-042; Ex. MD-090; Ex. KY-058; Ex. KY-059; Ex. HI-068; Ex. HI-069; Ex. UT-051; Ex. UT-052; Ex. UT-053; Ex. SD-088; Ex. ID-084; Ex. RI-084; Ex. RI-085; Ex. TN-050; Ex. TN-051; Ex. VT-057; Ex. VT-059; Ex. VT-060; Ex. VT-061; Ex. IA-056; Ex. MN-053; Ex. DC-060; Ex. FED-026; Ex. NJ-054; Ex. NJ-089; Ex. NY-086). The school face-covering and quarantine orders of New Jersey (August 6 and 23), Illinois (August 26), Washington (July 30 and August 20), California (July 12), Louisiana (August 3), Kentucky (August 10-12), Oregon (August 2), Rhode Island (August 19), Massachusetts (August 25), Pennsylvania (August 31, effective September 7), Delaware (August 13), Oakland and Wayne Counties (August 24 and 27), Harris County (August 12), Denver (August 17), Boulder County (August 9), the Tri-County Health Department (August 18 and September 1) and Jefferson County, Colorado (August 17) governed the workforce's children and, through the quarantine of close contacts, the workforce itself; the health-care-worker vaccination orders of California (July 26 and August 5), New York (August 26), New Jersey (August 6), Oregon (August 25), Washington (August 9), Massachusetts (August 4 and September 8), Connecticut (September 3), Maryland (August 18 and September 8), Maine (August 12), Rhode Island (August 17), Colorado (August 30), Los Angeles County (August 12), Philadelphia (August 16) and Denver (August 2) fixed which contract barbers, hairdressers, groomers and funeral personnel could enter a hospital, nursing home or clinic and on what proof; the isolation and quarantine standing orders of Rhode Island, San Diego County, Los Angeles County, Indiana, Kansas and Arkansas removed every exposed worker from every premises for ten to fourteen days; the Supreme Court of Texas's Fortieth Emergency Order (August 1 to October 1), Virginia's Twenty-Sixth and Twenty-Eighth Orders, Maryland's Third Amended Administrative Order and Ninth health-measures order (August 9), Kentucky's Administrative Orders 2021-27 and 2021-28 (August 9), Hawaii's postponement of every jury trial (August 16 and September 29), Utah's orders of July 28, August 12 and September 17, South Dakota's standing order (July 6), Idaho's face-covering order (August 9), Rhode Island's Executive Orders 2021-04 and 2021-06, Tennessee's orders of May 14 and August 26, Vermont's amended Administrative Order 49 and Directive PG-13, Iowa's face-covering order (August 27), Minnesota's order of June 28 and the District's order of September 1 governed the courthouses in which the industry's estate, collection, landlord and licensing matters are heard; and the CDC's eviction order (August 3 to 26), New Jersey's Executive Order 249 and P.L. 2021, c. 188 (August 4) and New York's Chapter 417 (September 2) governed the industry's landlords. Status: each in force from the date stated; the court orders, the quarantine standing orders and the CMS memorandum in force July 1 and September 30. Functions: WF, HR, SL, FH, OP.¹⁶⁵

B-11. The territories (Ex. AGY-TERRITORIES-035; Ex. AGY-TERRITORIES-036; Ex. AGY-TERRITORIES-037; Ex. AGY-TERRITORIES-032; Ex. AGY-TERRITORIES-033; Ex. AGY-TERRITORIES-034; Ex. AGY-TERRITORIES-110; Ex. AGY-TERRITORIES-111; Ex. AGY-TERRITORIES-065; Ex. AGY-TERRITORIES-066). Puerto Rico's OE-2021-064 (August 19; effective August 30) required the employees of gyms, beauty salons, barbershops, spas, child-care centers, casinos and supermarkets to be vaccinated or tested weekly, and OE-2021-065 (August 30; effective September 2) ordered indoor face coverings and a midnight-to-5:00 a.m. closing, extended by OE-2021-070 on September 20; OE-2021-058, -062 and -063 imposed vaccination-or-testing on public employees, executive-branch contractors, health and lodging workers and the employees and patrons of restaurants and venues from August 16 and 23; Guam's Executive Orders 2021-19 and 2021-20 (August 20 and 24) required proof of vaccination for covered establishments; the Virgin Islands' Twenty-Seventh (August 6) and Twenty-Eighth (September 13) Supplemental Orders kept its gathering rules, beach closures, eviction moratorium and midnight closure in force. Status: in force September 30 from the dates stated. Functions: SL (every salon, barbershop and spa worker in Puerto Rico), HR, WF, CB.¹⁶⁶

B-12. The preemption States and what carried them (Ex. TX-037; Ex. TX-038; Ex. TX-032; Ex. FL-063; Ex. FL-032; Ex. FL-033; Ex. AZ-044; Ex. AZ-045; Ex. AZ-047; Ex. AZ-066; Ex. AZ-080; Ex. AZ-081; Ex. AZ-082; Ex. AZ-083; Ex. AZ-084; Ex. GA-041; Ex. GA-046; Ex. TN-033; Ex. TN-034; Ex. TN-035; Ex. TN-036; and Texas's Executive Order GA-38, Florida's Chapter 2021-8 and Georgia's Executive Order 08.19.21.03). Texas's GA-38 (July 29) preempted local mandates while the Governor renewed the disaster declaration monthly (August 29) and SB 968 barred vaccination-proof requirements as a permit condition from June 16; Dallas County, Bexar County and Harris County ordered notwithstanding, and the Texas Supreme Court's stay of August 15 and the Fifth Court of Appeals' affirmance of November 22, 2021 are the record of an order that stayed on the books throughout. Florida's s. 381.00316 provided from July 1 that "[a] business entity ... may not require patrons or customers to provide any documentation certifying COVID-19 vaccination," and its Executive Order 21-175 and Department of Health emergency rules of August 6 and September 22 governed the schools. Arizona's Executive Orders 2021-16 (July 2) and 2021-18 (August 16) and the Attorney General's report of September 7 on Tucson's ordinance governed what the cities could do, while the Navajo Nation's Public Health Emergency Orders 2021-015 through 2021-019 (August 4 and 12) required face coverings in every business on the Nation, declared "Orange Status" for businesses and schools and set gathering limits, on top of its standing face-covering mandate of April 17, 2020. Georgia's Economic Recovery State of Emergency (June 30, renewed July 22, August 19 and September 20) and Executive Order 08.19.21.03 dictated what local rules a business could be compelled to enforce. Tennessee's Executive Orders 81, 82, 83 and 84 (May 28 through August 16) governed the emergency, the health-care workforce and the schools. Status: in force as stated. Functions: SL, CB, WF, OP.¹⁶⁷

B-13. The emergency and continuing-order instruments (Ex. AL-052; Ex. AR-017; Ex. CT-048; Ex. CT-058; Ex. NJ-052; Ex. RI-054; Ex. MA-049; Ex. MA-054; Ex. DE-041; Ex. MO-020; Ex. MO-018; Ex. NC-001; Ex. NC-058; Ex. WV-001; Ex. UT-025; Ex. AK-030; Ex. AK-031; Ex. NE-068; Ex. ID-030; Ex. ID-064; Ex. OK-089; Ex. OK-041; Ex. LA-034; Ex. LA-035; Ex. OH-049; Ex. OH-071; Ex. WV-064). Alabama declared a new state public health emergency August 13; Arkansas one from July 29 to September 27; Connecticut renewed its emergencies July 13 (to September 30) and September 27 (to February 15, 2022); New Jersey continued its state of emergency by Executive Order 244; Rhode Island declared a disaster emergency for the variants August 19; Massachusetts' modified public health emergency and Public Health Emergency Order 2021-1 ran throughout; Delaware declared a public health emergency July 12; Missouri's Executive Order 21-09 (August 27) declared a health-care staffing emergency to December 31 as the general emergency ended that day (Ex. MO-020; Ex. MO-018); North Carolina's Executive Order 116 ran to 2022 and its Executive Orders 224 (July 29) and 229 (August 31) required vaccination or face coverings of State workers and continued the emergency measures; West Virginia's, Kentucky's (by HJR 1 of September 7), Utah's, Alaska's (with crisis standards of care from September 21), Nebraska's (August 26), Idaho's (August 31 and September 7) and Louisiana's (June 23 and July 21) emergencies, the City of Stillwater's hospital-capacity emergency (September 3 to 20) (Ex. OK-089), Oklahoma's own emergency having ended May 4, 2021 (Ex. OK-041), and the nursing-home testing orders of Michigan, Ohio, West Virginia, Kansas and Maryland completed the State layer. These instruments are relied on as the predicates under which the face-covering, school, health-care and court orders above were issued and as orders in their own right where they limited commerce; none is relied on as a bare declaration. Functions: all.¹⁶⁸

C. How the instruments reached the functions

SL. In seven States and the District (Nevada, Louisiana, Oregon, New Mexico, Washington, Illinois, Hawaii and the District of Columbia), on the Navajo Nation and in the metropolitan areas named in subpart B, every operator and every customer in every chair was placed under a face-covering order, an airborne-transmission control on the premises, from dates between July 17 and September 17, 2021, with the operator under a duty to enforce and to post; in California, Connecticut and New York every unvaccinated one, with the California operator put to a choice of verification, attestation or universal face coverings and the New York operator bound to supply the covering at its own expense; in Puerto Rico every salon, barbershop and spa worker was vaccinated or tested weekly by order from August 30; in Hawaii every premises operated under the tier conditions and the gathering caps of ten and twenty-five. The Notice's own words describe the result: "requiring employees and customers to wear face coverings" is a modification "required by a governmental order as a condition of reopening a physical space for business or service to the public."¹⁶⁹ The service this industry sells is performed on the face, the head and the body of a customer at a distance of inches for an hour at a time; an order that covers the customer's face bars the lip, nose, beard and facial services outright, as Illinois, New York City, Chicago and Sacramento wrote into their orders in terms, and conditions every other service on a covering that the operator must supply, check and enforce on pain of fine or closure.

CL. Every laundromat was an indoor public place under the same orders, with its customers under the face-covering requirement and its operator posting and enforcing; every commercial laundry with a hospital, clinic or nursing-home account was a covered workplace under the OSHA Healthcare Emergency Temporary Standard on every day of the quarter; every hotel, restaurant and event account ran under the orders of those sectors (Hawaii's fifty-percent indoor cap, New York City's, San Francisco's, New Orleans's and Honolulu's vaccination-proof conditions of entry, the face-covering orders everywhere); and every route driver and plant worker who rode transit rode under the federal conveyance order.

FH. The viewing and the service were "group meetings" under the gathering caps of Hawaii (ten indoors; twenty-five outdoors) and under the indoor face-covering orders of every jurisdiction in subpart B; the removal from a hospital or nursing home was governed by the visitation memorandum and the health-care-worker vaccination orders; the arrangement conference was an indoor public meeting; the estate matters were heard in courthouses closed or placed under face-covering orders.

PS and RP. The grooming lobby, the boarding office and the repair shop were indoor public places under the face-covering orders; the in-home technician entered homes under the household screening and quarantine rules of Sacramento, Los Angeles and San Diego Counties and the workplace standards of California, Virginia and Oregon.

RT. The desk sale was a retail sale under the retail face-covering rules named in the orders (Cook County; Baltimore; King County).

HR, OP and WF. The licensing waivers of California and Pennsylvania governed who could be hired and renewed; the National Emphasis Program, Cal/OSHA, Virginia's and Oregon's standards and Illinois' employer duty governed screening, exclusion and record-keeping in every workplace in those States; the conveyance order governed every commute; the school face-covering and quarantine orders and the isolation and quarantine standing orders governed the workforce's availability; Puerto Rico's and New Orleans's employee orders governed who could work.

CB. The entry proclamations, the land-border notices, the pre-departure test order and Hawaii's Safe Travels regime fixed which traveler could sit in the resort spa's chair; the face-covering orders fixed what every customer wore and which services could be performed on her; the quarantine orders fixed whether an exposed customer could keep her appointment; Florida's and Texas's prohibitions on requiring proof fixed, from the other direction, how a business could condition service.

D. Continuing suspension

The clause asks whether the operation "is fully or partially suspended during the calendar quarter due to orders." The adverbial phrase "during the calendar quarter" modifies "suspended"; Congress did not write "due to orders in effect during the calendar quarter." An operation that an order terminated in one quarter and that had not been restored to its ordinary course in the next is "partially suspended during" the next quarter "due to" the order, because a suspension is, on the United States' own agreed definition, "[t]he act of temporarily delaying, interrupting, or terminating something," and a delay does not end on the day the order that caused it expires.¹⁷⁰

The arithmetic. The orders' own phase steps fix how long the restoration took. A New Jersey salon closed at 9:00 p.m. March 21, 2020 reopened June 22 only on two agencies' standards, was cut to twenty-five percent November 12, rose to thirty-five percent February 5, 2021 and to fifty percent March 19, 2021 and was released from its caps between May 28 and June 4, 2021, four weeks before the quarter began.¹⁷¹ An Illinois salon closed March 21, 2020 reopened May 29 in Phase 3 with masks and no mask-off services, ran at fifty percent from June 26 in Phase 4 with mask-off services only under eye protection, fell to twenty-five percent with no mask-off services November 20, left Tier 3 between January 15 and 22, 2021 and returned to Phase 4 by February 4, moved to the Bridge Phase May 14 and to Phase 5 June 11, 2021, three weeks before the quarter, and came under the indoor face-covering order again August 30, an airborne-transmission control with the employer's duty to enforce it (subpart B-6).¹⁷² A California salon closed March 19, 2020 reopened for hair May 26, was closed indoors July 13, reopened for hair August 31 and for nails and skin September 22, was closed again December 6 or 17 to January 25, 2021, ran at the tier caps to June 15, 2021, two weeks before the quarter, and came under the indoor face-covering orders again from July 17 (Los Angeles County), July 30 (Sacramento) and August 3 (the Bay Area).¹⁷³ A Washington salon closed March 16, 2020 reopened in Phase 2 under the Personal Services Requirements (King County June 19), fell to twenty-five percent November 17, rose to fifty percent March 22, 2021 and was released June 30, 2021, the day before the quarter, and came under the indoor face-covering order again August 23.¹⁷⁴ A Michigan salon closed March 22, 2020 reopened June 15 under binding guidelines, came under the MIOSHA rules October 14 and the appointment-only, no-mask-off-service orders November 15, and was released June 1 (capacity) and June 22, 2021 (face coverings), eight days before the quarter.¹⁷⁵ A New Mexico salon reduced to zero March 24, 2020 reopened at twenty-five percent June 1, closed November 16 to 30, ran at twenty-five percent in red counties, was released from the county framework July 1, 2021, the first day of the quarter, and came under the indoor face-covering order again August 20.¹⁷⁶ A Kentucky salon closed March 18, 2020 reopened May 25 at thirty-three and then fifty percent (June 25), appointment-only, with no waiting area, and was released from those requirements June 11, 2021, twenty days before the quarter.¹⁷⁷ A Hawaii salon was never released. In each case the last capacity step took effect between May 19 and July 1, 2021, and the third quarter began within zero to six weeks. The ecosystem section states the point in full; the Notice itself recognizes that an employer suspended for part of a quarter is eligible for the whole quarter and that a transition period follows a change compelled by order.¹⁷⁸

The four pathways. Continuing suspension reaches the third quarter of 2021 by four independent routes: (1) the orders in force on every day of the quarter (the conveyance order, the OSHA instruments, the entry and border orders, the State workplace standards, Hawaii's and New Mexico's orders, the court, quarantine and visitation orders); (2) the orders issued inside it (the indoor face-covering orders of seven States, the District and the metros, with their operator duties; Puerto Rico's employee order; the school and health-care orders); (3) the license and regulatory conditions the sector regulators kept in force after the general restrictions ended (the California and Pennsylvania waivers; the CMS memorandum; Colorado's Limited COVID-19 Restrictions); and (4) the restoration period the orders' own phase steps compelled. Each is independently sufficient; the finding in subpart F rests on all four, and the closing paragraph of this section names the expired instruments on which it does not rest.

E. The Service's grounds for the quarter, answered

"No orders in effect."

"The orders had lifted; any effect was a lingering effect."

"Masks are a modification of nominal effect."

"The employer was not the addressee."

"Guidance, not orders."

F. The finding

What this analysis does not rely on for the quarter

Of the statewide orders on this industry's premises, the proof for this quarter rests on the indoor face-covering orders of the seven States and the District named in subpart B-6 (six reinstated; Hawaii's never lapsed), on Hawaii's tier and gathering orders and Executive Order 21-05, on New Mexico's June 30 order for July 1 through August 19 and its August 17 order thereafter, on California's, Connecticut's and New York's orders as to the unvaccinated and Colorado's Limited COVID-19 Restrictions, and on Puerto Rico's OE-2021-064; the federal, metropolitan, sector and counterparty instruments on which it also rests are listed in subpart B. It rests on none of the following, each of which had expired before July 1, 2021 or took effect after September 30, 2021 or did not reach this industry: the March and April 2020 closure orders of every State (Ex. SEC-18-008; Ex. SEC-18-032; Ex. SEC-18-035; Ex. SEC-18-034 and their counterparts); the reopening conditions of 2020 (Ex. SEC-18-009; Ex. SEC-18-011; Ex. SEC-18-025; Ex. SEC-18-026; Ex. SEC-18-027; Ex. SEC-18-039); the winter 2020-21 closure and capacity orders (Ex. SEC-18-024; Ex. SEC-18-019; Ex. WA-047; Ex. MI-061; Ex. NM-039; Ex. MA-040; Ex. NJ-037; Ex. PA-022 and their counterparts); every statewide salon capacity, appointment or mask-off-service order, the last of which ended July 1, 2021 in New Mexico (the county-color framework and its capacity caps (Ex. NM-039; Ex. NM-040), which the June 30, 2021 order superseded; that order is relied on only for the face-covering and COVID-Safe Practices requirements it kept in force from July 1); Michigan's MIOSHA emergency rules (rescinded June 22, 2021) (Ex. SEC-12-059; Ex. AGY-ST-LABOR-WORKPLACE-062); the federal leave mandate (December 31, 2020) (Ex. FED-170); the statewide face-covering orders that ended before July 1, 2021, other than Hawaii's and those reinstated in the quarter; New York City's Key to NYC (Ex. MET-NYC-017), San Francisco's order of August 12, 2021 (Ex. MET-SFO-011) and New Orleans's order of August 13, 2021 (Ex. MET-MSY-029), each of which reached dining, fitness and entertainment and not personal care and is relied on only as an order on the laundry's accounts; St. Louis County's Face Covering Order after the restraining order of August 3, 2021 (Ex. MET-STL-069; Ex. MET-STL-093), relied on only for July 26 through August 3; Atlanta's order after August 19, 2021 (Ex. MET-ATL-063; Georgia's Executive Order 08.19.21.03), relied on only for July 28 through August 19; Clark County's employee face-covering measure after July 30, 2021 (Ex. MET-LAS-006), absorbed by Directive 047; Tucson's Ordinance 11869 (August 13, 2021) (Ex. MET-PHX-002), which reached city employees, and the Attorney General's Investigative Report No. 21-003 on it (September 7, 2021) (Ex. AZ-047); Salt Lake City's and Louisville's orders for their own buildings (Ex. MET-SLC-029; Ex. MET-SDF-017), relied on for no private premises; the vaccination-or-testing provisions of Illinois' Executive Order 2021-22, which reach school and health-care personnel and not salons (the same order's duty on employers to enforce the indoor face-covering requirement is relied on in subpart B-6); the OSHA vaccination-or-testing standard and the CMS staff-vaccination rule of November 5, 2021; Proclamation 10294 (November 8, 2021) (Ex. FED-209); Hawaii's Executive Order 21-08 (November 12, 2021) (Ex. HI-030); St. Louis's Health Commissioner's Order No. 3 (October 1, 2021) (Ex. MET-STL-023); Colorado's Seventh Amended Public Health Order 20-38 (October 1, 2021) (Ex. CO-054); Alabama's extension proclamation of October 8, 2021 (Ex. AL-053), cited only as the marker of the August 13 emergency's duration; the Virgin Islands' Thirty-First Supplemental Order (October 28, 2021) (Ex. AGY-TERRITORIES-069); Prince George's Executive Order No. 21-2021 as to persons aged two to five (September 30, 2021, relied on for that day only); Prince George's Executive Order No. 22-2021 (October 4, 2021) (Ex. MET-DCM-047), relied on only for its recital of the August 5 order; the Supreme Court of Texas's Forty-Third Emergency Order (issued September 21, 2021; effective October 1, 2021) (Ex. ECO-C-071); Rhode Island's Executive Order 21-99 (signed September 30, 2021; effective October 1, 2021) (Ex. RI-065), the State's emergency having been carried through September 30 by the orders it continued; and West Virginia's Executive Order 23-21 (issued July 20, 2021; operative October 1, 2021) (Ex. WV-067), cited only as evidence that the State's emergency continued through September 30, 2021. The Healthcare Emergency Temporary Standard is relied on as an order on the laundry that performs services in a health-care setting and on the industry's institutional counterparties, and not as an order on a salon.