Professional and Information Services

For every quarter, the six-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 tables on this page tabulate them. For the third quarter of 2021 alone the list runs to the federal workplace, contractor, conveyance, entry, border and court orders, the New York HERO Act plans, the California, Virginia, Oregon and Washington workplace standards, the indoor face-covering and exposure-control orders of six States and nine metros and the court orders of at least twenty-nine States.¹⁵⁰ A form sentence that no orders were in effect is not the "case-by-case" determination the United States described to the District Court.¹⁵¹ The sentence describes a quarter that did not occur, and the Service's records, whatever they contain, do not contain the Federal Register.

The word "essential" is not in the statute. The essential-services designations permitted work; they exempted no office from the telework mandates, capacity caps, workplace standards, exposure-prevention plans or face-covering orders that applied to every business.¹⁵² 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 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."¹⁵³ The designation was a permission to operate under the orders, not an exemption from them.¹⁵⁴ 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."¹⁵⁵ The orders that reached this industry were, moreover, directed at business operations in terms: "Work in offices is prohibited"; "all businesses must conduct their operations remotely."¹⁵⁶ 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 an office ordered to remote operation has had its in-person portion terminated for the duration of the order.¹⁵⁷ The Notice's own words say the same. Q&A-15 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," and its Example 3 treats a research company's laboratory operations, which "cannot continue in a comparable manner," as partially suspended although its modeling staff teleworked; Q&A-16 provides that where the physical work space is so critical that central tasks cannot be performed remotely "this factor alone indicates that the employer is not able to continue comparable operations," and that a delay "beyond 2 weeks" in moving to telework is itself a partial suspension; Q&A-17 provides that a compelled modification with more than a nominal effect is a partial suspension. The depositions, closings, site inspections, court appearances, installations and examinations of this industry are the laboratory of Example 3. The comparable-operations sentence with which Q&A-15 opens is not in the statute, has no force of law by the United States' own account, and is not applied here.¹⁵⁸ A law firm whose trials were postponed for fourteen months did not continue "comparable operations" by telephone; it continued the portion of its operations the orders left it. Telework was the modification the orders compelled, and a compelled modification of a more than nominal portion is a partial suspension, which is what Q&A-17 also says.¹⁵⁹ The position substitutes a word Congress did not write for the one it did.

Q&A-13 addresses an employer that suspends operations because of "a reduction in demand." This analysis relies on no reduction in demand. It relies on orders that closed the courts in which the industry appears, the customer premises at which it works, the examinations by which it hires, the consulates through which it staffs and the offices in which it sits, and it treats 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.¹⁶⁰ 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 describes an employer that "responds to the lack of demand by suspending some or all of its operations." This analysis describes no response to demand; it describes orders that closed the venues, counterparties and transactions through which this industry works, and where Q&A-13 would exclude an order confining the customer base it adds to the statute words the United States has represented have no force of law. It does not describe an employer whose courts, customers and consulates were closed by order, and the Service's invocation of it against this industry misdescribes both the orders and the industry.

An exposure-prevention plan adopted because 12 NYCRR § 840.1 required it, an office cut to twenty-five percent because Massachusetts's Order No. 59 required it and a trial held remotely because the Tax Court ordered it are not voluntary. Q&A-14 describes an employer that closes without any order; every modification described here is traced to an order with an exhibit identifier.¹⁶¹ 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."¹⁶² A modification traced to an order with an exhibit identifier is not voluntary, and the position that it was describes an employer this analysis does not address.

Q&A-14 reaches, by its own terms, only a suspension "not due to a governmental order,"¹⁶³ and the United States and the District Court have defined the excluded employer as one "not being ordered to do so."¹⁶⁴ No employer in this industry in the eight States examined in the standing-duties section answered that description in any of the six quarters. The reopening orders permitted an office to operate only on conditions with the force of law: at half its listed occupancy, under written policies adopting CDC, OSHA and State health guidance, with its in-person workforce cut by half or sent home (Ex. TX-021; Ex. AZ-019; Ex. NY-003).¹⁶⁵ The standing statutes commanded the same conduct independently and under penalty: Texas Health and Safety Code section 81.002, "Each person shall act responsibly to prevent and control communicable disease" (Ex. DUT-TX-001); Labor Code section 411.103's "Each employer shall" (Ex. DUT-TX-013); the communicable-disease and safe-workplace statutes of the other seven States; and in every State the general duty clause, enforced by citation from September 2020 and against an office of this industry (Ex. DUT-FED-001; Ex. DUT-FED-073).¹⁶⁶ 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 and Arizona from March 10, 2020 (Ex. DUT-TX-015; Ex. DUT-AZ-010; Ex. DUT-FL-012).¹⁶⁷ The safe-workplace statute had no COVID-19 content until the health authorities said what a safe workplace required; from that moment the emptied office, the distanced floor and the screened staff were the law's requirement, taken because those directives defined the duty. "Due to" is but-for causation,¹⁶⁸ and the causation here runs from the command to the measure without an intervening choice. The Notice's own words say the same: a modification "required by a governmental order as a condition of reopening a physical space for business or service to the public" is a partial suspension due to the order.¹⁶⁹ A statute that commands conduct is an order from an appropriate governmental authority; the Service's premise that these employers acted under no command fails wherever a command reached the employer, and the instruments above show that a command reached every one.

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."¹⁷⁰ The showing for this industry exceeds the safe harbor many times over.¹⁷¹ The position applies as a floor a figure the United States has told two federal courts is not one.

The modifications described here are closure, remote operation, capped occupancy, suspended trials, cancelled examinations, suspended entry and conditioned site access, and the face-covering orders of July through September 2021 are treated as what they are: workplace infection-prevention and exposure-control requirements imposed by orders from appropriate governmental authorities, enforced by fine, that conditioned every office in the States and metros that issued them and that carried, in the same instruments, the employer duties, the screening, distancing and policy-adoption requirements and, in Illinois and the health-care settings, the vaccination-or-testing duties that accompanied them. Q&A-18 itself 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 the United States told the District Court that "employees having to wear face masks may impact business operations."¹⁷² 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.¹⁷³ An office at ten percent occupancy is not a modification with a nominal effect; it is a ninety-percent closure.

This analysis relies on no bare declaration as a suspending order. Each instrument in the orders-by-layer and six-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.¹⁷⁴ 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.¹⁷⁵ The suppliers of this industry are the courts, the customers' premises, the examination bodies and the consulates, and each was closed or conditioned by an order with a date and an exhibit identifier; nothing here is attenuated. 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."¹⁷⁶ Causation is but-for on the United States' own agreed definition: absent the order closing the courthouse, no law kept the lawyer out of it.¹⁷⁷ The position describes an attenuated chain this analysis does not describe; a courthouse closed by administrative order 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 inventory of instruments in force in the third quarter of 2021 above lists, with dates, the orders in force on July 1 and September 30, 2021, and the closing paragraph of that quarter 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 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.¹⁷⁸ 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."¹⁷⁹ 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, contempt, license or contract.¹⁸⁰ Where a State made a federal guidance document binding by incorporating it into an order, the binding instrument is the order, and it is the order that is cited.¹⁸¹ The Notice itself provides that whether an instrument is a governmental order "is determined without regard to the level of enforcement."¹⁸² An instrument enforced by fine, contempt, license or contract clause is not a recommendation, and the position that it is misdescribes every instrument this analysis names.

Agreed. An "order" is "a command, direction, or instruction" and "a rule or regulation made by a competent authority"; the United States agreed in Tri-State that the clause is read by "plain meaning."¹⁸³ Every instrument in the findings below is a command from a competent authority to do or refrain from doing something on pain of sanction. That is the ordinary meaning, and it is satisfied.