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 were in force on the first day and the last day of the quarter and on every day between, and in each quarter they caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. This section states each quarter in turn: the orders in force, by layer and with exhibit identifiers; how they reached the eleven functions; and the finding in the terms the court adopted in Tri-State Memorial Hospital v. United States, No. 2:25-cv-0181-TOR, ECF No. 38 (E.D. Wash. May 28, 2026) ("Tri-State"). The third quarter of 2021 is written as a self-contained pointed section, because it is the quarter the Service's letters describe as empty.
The second quarter of 2020
By April 7, 2020, forty-two States and territories had issued mandatory stay-at-home orders covering 2,355 of 3,233 counties, the last of them (Georgia, Florida and Mississippi on April 3, Alabama on April 4, Missouri on April 6, South Carolina on April 7) taking effect in the quarter's first week, and every State and the District of Columbia had a gathering ban or closure order in force or taking effect within that week (Nebraska's statewide directed health measure took effect April 3; South Dakota's employer order followed April 6). In the Northeast: Connecticut's orders of March 16 and 26 (gatherings of fifty "as well as religious, spiritual or worship gatherings" prohibited, then five), New Jersey's Executive Order 107 (every resident home; every gathering cancelled; every business and nonprofit to telework), New York's Executive Orders 202.8 and 202.10 (100 percent in-person workforce reduction; "Non-essential gatherings of individuals of any size for any reason" cancelled), Massachusetts's Order No. 13 and its ten-person cap, Pennsylvania's stay-at-home orders, Rhode Island's orders naming "places of worship," Maine's ten-person cap on "faith-based events," New Hampshire's Emergency Order #17, Vermont's Addendum 5 ordering "all businesses and not-for-profit entities in the state" to telecommute, and Delaware's Fourth and Fifth Modifications.115 In the Mid-Atlantic and South: Maryland's stay-at-home order of March 30, the District's Mayor's Orders 2020-053 and 2020-054, Virginia's Executive Orders 53 and 55 (gatherings of ten "including ... religious ... events"), West Virginia's Executive Order 9-20, Kentucky's mass-gatherings order (naming "faith-based" events) and Healthy at Home order, North Carolina's Executive Order 121 (religious facilities "subject to" the mass-gathering limit; "religious and secular not-for-profit organizations, including food banks" covered), Tennessee's Executive Orders 17 and 22, Louisiana's 33 JBE 2020, Mississippi's Executive Order 1466 (April 1), Alabama's stay-at-home order (April 3), Georgia's Executive Orders 03.23.20.01 and 04.02.20.01 ("No business, establishment, corporation, non-profit corporation, organization ... shall allow more than ten (10) persons to be gathered at a single location"), Florida's Executive Order 20-91, South Carolina's Home or Work order (April 6), Arkansas's Executive Order 20-13 ("places of worship"), Oklahoma's Fourth Amended Executive Order 2020-07 and Texas's GA-14 with the county stay-at-home orders of Dallas, Tarrant, Denton, Harris, Fort Bend, Bexar and Galveston Counties ("Religious and worship services may only be provided by video and teleconference").116 In the Midwest: Ohio's Director's Order (covering "any for-profit, non-profit, or educational entities"), Illinois's Executive Orders 2020-10 and 2020-32 (gatherings of ten; "the free exercise of religion, provided that such exercise must comply with ... the limit on gatherings of more than ten people"), Michigan's Executive Order 2020-21, Minnesota's Executive Order 20-20, Wisconsin's Emergency Order #12 (religious gatherings of fewer than ten per room), Indiana's Executive Order 20-08, Iowa's proclamation of March 17 ("spiritual, religious ... gatherings and events of more than 10 people are hereby prohibited"), Kansas's Executive Order 20-16, Missouri's Stay Home Missouri order (April 6), Nebraska's directed health measures, North Dakota's Executive Order 2020-06 and South Dakota's Executive Order 2020-12 ("All employers, both for profit and not-for-profit").117 In the West: California's Executive Order N-33-20, Washington's Proclamation 20-25 ("social, spiritual and recreational gatherings of any kind regardless of the number of participants"), Oregon's Executive Order 20-12, Nevada's Directives 010 and 013 (worship gatherings of ten prohibited), Colorado's Public Health Order 20-24, New Mexico's order of April 11 placing worship under the gathering ban, Hawaii's Third Supplementary Proclamation and quarantine, Arizona's Executive Order 2020-18, Utah's Directive, Idaho's Order to Self-Isolate, Montana's Stay at Home Directive, Wyoming's Order #2 (gatherings of ten with "no worship exemption") and Alaska's Health Mandates 010 and 011.118 The federal layer: the national emergency, the Bureau of Prisons' suspension of every visit and volunteer, CMS's nursing-home visitation restriction, the VA's announced no-visitor stance and national-cemetery restrictions (facts and circumstances, not relied on as orders), the FFCRA leave mandate from April 1, the Defense Production Act orders and scarce-materials designation, the entry proclamations and the consular suspension, and the announced closure of the Social Security offices (likewise a fact and circumstance).119 The metros: New York City's 100 percent workforce reduction and cancellation of every gathering, Los Angeles County's Safer at Home order, the Bay Area's shelter orders, Chicago's ten-person ban and Lakefront closure, Philadelphia's Order No. 2, the Texas county orders, Denver's stay-at-home order, Seattle's and King County's orders, Honolulu's Stay at Home / Work from Home Order, New Orleans's stay-at-home directives, St. Louis City and County's orders, Boston's construction pause and Provincetown's stay-at-home order, Atlanta's Executive Order 2020-21 and Fulton County's Administrative Order 20.03.31.120 The sector layer: every State corrections department's visitation suspension; the tribal stay-at-home orders of the Navajo Nation, the Mescalero Apache Tribe, the Tohono O'odham Nation, the Yakama Nation and the Pueblo of Laguna; Puerto Rico's total closure of March 15 and its electronic-services-only rule for worship.121 On June 30, 2020, the reopening orders governed: worship at 25 percent or one hundred in Connecticut (7TT), 25 percent or fifty in New Jersey (Executive Order 152), 25 percent in New York (mandatory guidance), 50 percent or two hundred fifty in Minnesota (Executive Order 20-74, from June 10), twenty-five persons in Oregon (Executive Order 20-25) rising to fifty indoors and one hundred outdoors in Phase II counties (Executive Order 20-27), fifty in Nevada (Directive 021), 33 percent in Kentucky, 30 percent in Delaware, 50 percent in Maryland and the District's Phase Two, 25 percent or one hundred in California (the cap the Supreme Court declined to enjoin on May 29, 2020), under Massachusetts's mandatory workplace safety rules, and under the statewide and metropolitan face-covering orders, workplace infection-prevention and exposure-control requirements attached with distancing and written-protocol conditions to every reopened premises, of Connecticut, New Jersey, New York, Massachusetts, Rhode Island, Delaware, Maryland, the District, Virginia, Michigan, Illinois, California, Washington, Oregon (seven counties from June 24; statewide July 1), Nevada, New Mexico, Hawaii (customer and employee face coverings in businesses under the Fifth Supplementary Proclamation), Dallas County, Harris County, Los Angeles County, the Bay Area, Chicago, Minneapolis, Seattle and Honolulu; every gathering above ten to fifty remained prohibited in most States; every school in the country was closed to in-person instruction; and the federal layer was unchanged.122
WS: every service between March 16 and late May 2020 was either cancelled, confined to video and teleconference, or held under a cap of ten or fewer; Easter, Passover and Ramadan fell within the mandatory period in every jurisdiction whose order was in force on those dates; the reopening caps of May and June governed every service through June 30. RE: every parochial school and religious-education program was closed to in-person instruction from mid-March through the end of the school year; church child care operated, where it operated at all, only for the children of essential workers under emergency licenses. EV: every festival, gala, convention and fundraiser scheduled for the quarter was cancelled by the gathering bans, which named "conventions" and "fundraisers" in terms in Iowa and Kentucky. FS: pantries, kitchens and shelters continued only "when providing food, shelter, and social services," with congregate dining confined to "a pick-up and takeaway basis," thrift stores closed as non-essential retail, and day programs suspended. CR: every hospital, nursing home, jail and prison in the country was closed to clergy and volunteers except for compassionate-care visits. FC: every rental was cancelled with the gathering it would have hosted. VL: the volunteer workforce was confined to home. HR: consular services and entry were suspended. OP: every parish and nonprofit office was ordered to telework or closed as non-essential. WF: staff and volunteers were subject to stay-at-home orders, school closures and the FFCRA leave mandate. CB: the member and donor base was confined to home by order in forty-two jurisdictions.
During the calendar quarter beginning April 1, 2020 and ending June 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the stay-at-home, gathering-ban, closure and telework orders of every State and the District of Columbia, the metropolitan orders of the largest metros, the reopening orders that capped worship and gatherings from May and June 2020, the school-closure orders, the federal visitation, prison, leave, entry and consular orders, and the corrections, tribal and territorial orders, caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by prohibiting or capping every worship service, class, event and rental; by closing every school and confining child care; by confining food and shelter programs to pick-up and emergency operations; by barring clergy and volunteers from every hospital, nursing home and prison; by ordering every office to telework; and by confining the workforce, the volunteers and the member base to their homes.123
The third quarter of 2020
On July 1, 2020, the reopening orders of every State governed worship, education, events and rentals by cap and condition, and the summer surge produced re-tightening in the South and West. California closed indoor worship in the monitored counties on July 13, 2020 and held it closed through the Purple tier from August 31; Los Angeles, Long Beach, Pasadena, San Diego and Sacramento made the closure county law.124 Kentucky cut gatherings to ten on July 20, 2020 while requiring public-facing businesses to "comply" with the capacity and distancing orders.125 New Jersey capped indoor gatherings at twenty-five and religious gatherings at one hundred from August 4 and at 25 percent or one hundred fifty from September 4, 2020.126 Connecticut held worship at 25 percent or one hundred through the quarter under Executive Order 7TT.127 New York held worship at 25 percent, then 33 percent, under its mandatory religious-services guidance, and New York City refused every event permit from July 7, 2020.128 Nevada held worship at fifty under Directive 021, the cap the Supreme Court declined to enjoin on July 24, 2020.129 Oregon held faith gatherings at twenty-five in its Phase I counties and fifty indoors or one hundred outdoors in Phase II; Washington at 25 percent or two hundred under its Safe Start phases; Minnesota at 50 percent or two hundred fifty; Maryland at 50 percent, rising to 75 percent on September 4; the District at 50 percent or one hundred; Rhode Island at 66 percent; Delaware at 30 percent, with events over 250 only by plan from September 4; Maine at fifty; Massachusetts under the Phase III cap of twenty-five indoors, with outdoor gatherings cut to fifty by Order No. 46 from August 11; Pennsylvania under its 25 and 250 caps (worship exempt from the number but under the July 1 face-covering order); Illinois under Phase 4's fifty; Michigan under Executive Order 2020-110's ten and one hundred; New Mexico at 25 percent, then 40 percent; Colorado under its dial.130 Statewide face-covering orders, workplace infection-prevention and exposure-control requirements that the reopening regimes imposed alongside their distancing, capacity and written-protocol conditions, reached sanctuaries in Connecticut, New Jersey, New York, Massachusetts, Rhode Island, Maine, Vermont, Delaware, Maryland, the District, Virginia, North Carolina, Kentucky, Louisiana (July 13), Alabama (July 16), Arkansas (July 20), Mississippi, West Virginia, Ohio (July 23), Indiana, Michigan, Minnesota (July 25), Wisconsin (August 1), Illinois, Kansas (July 3), Colorado, New Mexico, Nevada, California, Oregon, Washington, Montana (July 15) and Hawaii (under the Fifth Supplementary Proclamation's business face-covering rules), and in Texas under GA-29 (worship exempt); New Hampshire required face coverings at every scheduled gathering of one hundred or more from August 11, 2020 (Emergency Order #63) and statewide only from November 20, 2020; Jefferson Parish's July 1, 2020 mandate reached "places of worship" in terms.131 Every public and private school in Dallas, Tarrant and Harris Counties was barred from on-campus instruction until September 8 and 28, 2020, Los Angeles County's schools were closed to in-person learning from July 18, 2020, and Dane County's Order #9 closed every school in Madison until it was enjoined on September 10, 2020.132 The federal layer added CMS's testing rule of September 2 and visitation memorandum of September 17, the CDC's eviction moratorium of September 4, Proclamation 10052's entry suspension and the post-by-post resumption of consular services; the Bureau of Prisons kept every social and volunteer visit suspended until October 3, 2020.133 On September 30, 2020, every one of those regimes was in force, and the winter re-tightening had begun in the New York cluster zones the following week.134
WS: every service was held under a fixed-number or percentage cap, distancing between households, face-covering requirements and, in California's monitored counties, an indoor prohibition; the High Holy Days of September 18 to 28, 2020 fell under the caps in every State that had them. RE: parochial schools opened the 2020-21 year remotely in most of the largest metros by order; church child care operated under cohort and ratio rules. EV: the fall gala and festival season was cancelled or capped by gathering limits and event-permit moratoria. FS: kitchens and pantries operated under distancing and protocol orders; shelters under congregate-setting rules; thrift stores under retail caps. CR: hospitals and nursing homes remained closed or conditioned to visitors; prisons remained closed to volunteers. FC: every rental was capped with the gathering it hosted. VL and WF: the face-covering orders, quarantine orders and school orders governed the workforce and the volunteers. HR: entry and consular suspensions continued. OP: office occupancy caps and telework mandates continued by order in New York, New Jersey, California and the metros (Ex. MET-PHL-005; Ex. MET-LA-006; Ex. MET-DEN-008). CB: the member base attended under caps or not at all.
During the calendar quarter beginning July 1, 2020 and ending September 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the reopening orders that capped worship and gatherings in every State, the July re-closures of indoor worship in California and the July tightening in Kentucky, New Jersey and New Orleans, the statewide and metropolitan face-covering orders (workplace infection-prevention and exposure-control requirements carried with the reopening regimes' distancing and protocol conditions), the school orders, and the federal visitation, prison, eviction, entry and consular orders, caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by capping every service and event, by keeping schools closed or remote, by conditioning every pantry, kitchen and shelter, by barring visitation, and by governing the workforce and the volunteers.135
The fourth quarter of 2020
On October 1, 2020, the third-quarter regimes governed. On October 6, 2020, New York's Executive Order 202.68 created cluster zones in which "houses of worship shall be subject to a capacity limit of 25% of maximum occupancy or 10 people, whichever is fewer" (red) or 33 percent or twenty-five (orange), "Non-essential gatherings of any size shall be postponed or cancelled," every non-essential in-person workforce was reduced by 100 percent, and every school closed to in-person instruction; the Supreme Court enjoined the fixed caps on November 25, 2020 and the Second Circuit ordered preliminary injunctions on December 28, 2020, and the percentage caps and the zones remained.136 Connecticut raised worship to 50 percent or two hundred on October 8 and cut it to 50 percent or one hundred on November 6, 2020, extending every order through February 9, 2021.137 New Jersey cut indoor gatherings to ten on November 17, 2020 while holding religious gatherings at 25 percent or one hundred fifty, and cut outdoor gatherings on November 23 and December 7.138 Massachusetts cut gatherings to ten and twenty-five on November 6 and held every venue, including worship, at 25 percent from December 26, 2020; Boston, Cambridge, Somerville and Brockton rolled back to Phase II Step 2 with indoor event spaces "closed to customers and the public."139 Rhode Island cut social gatherings to ten on October 30, worship to 50 percent on November 8 and to 25 percent from November 30; Maine to fifty indoors on November 4; Pennsylvania to a telework mandate and to 10 percent indoors and 15 percent outdoors of maximum occupancy on November 27 and to ten and fifty persons from December 12; Delaware to 30 percent or ten on December 14; Maryland to 50 percent on November 20; the District to 50 percent or fifty on November 23 and 25 percent or two hundred fifty on December 16; Virginia to ten with worship exempt on conditions on December 14.140 Kentucky closed every public and private school to in-person instruction from November 23, 2020, kept every middle and high school remote to January 4, 2021 and permitted elementary schools to reopen from December 7 only outside Red Zone counties, cut gatherings and venues on November 20, and kept worship at 33 percent under conditions.141 Michigan's health department re-imposed gathering caps and closed indoor venues from October 5 and November 18, 2020 after the Supreme Court of Michigan's decision; Detroit's health department capped indoor gatherings at ten and venues at 20 percent from October 9; Oakland and Wayne Counties re-imposed the State's rules by county order within a week.142 Minnesota's Executive Order 20-99 closed venues and prohibited social gatherings from November 20 while holding worship at 50 percent of occupancy up to two hundred fifty, the level Executive Order 20-74 had set on June 10, 2020; Illinois entered Tier 3 on November 20 with worship at 25 percent or fifty in Chicago and event venues barred from hosting any gathering; Wisconsin's 25 percent order ran from October 8 to November 6; Indiana imposed county caps of 250, 100, 50 and 25 from November 15; Iowa imposed telework and face-covering requirements, workplace infection-prevention and exposure-control requirements, on November 10 and 16; Ohio's curfew and face-covering orders, the latter an airborne-transmission control on every indoor public place, continued; North Dakota capped venues at 25 percent from November 13; Nebraska from November 11.143 California's Limited Stay at Home Order (November 21) and Regional Stay at Home Order (December 6) prohibited every gathering with other households and closed every non-essential sector in Southern California and the Bay Area, with indoor worship prohibited in Tier 1 under the Blueprint; Washington's Proclamation 20-25.8 (effective November 17) capped worship at 25 percent or two hundred and closed indoor venues; Oregon's Freeze (November 17) capped faith institutions at twenty-five indoors and its "Extreme Risk" level (December 3) at 25 percent or one hundred; Nevada's pause (November 24) cut worship to 25 percent or fifty; New Mexico's Red counties capped worship at 25 percent (December 30); Colorado moved its metro counties to Level Red on November 20 and removed the worship caps on December 7 during the Supreme Court litigation; Denver's Home by 10 order confined residents nightly from November 8 to December 1, 2020, when Denver's Level Red order replaced it, and prohibited every cross-household gathering under Level Red; Kansas City, St. Louis County and Jackson County re-imposed stay-at-home and gathering orders from November 17 and 20; Philadelphia prohibited every cross-household indoor gathering from November 20; Honolulu held gatherings at five; Louisiana's Modified Phase Two held churches to 75 percent of occupancy with lobbies closed and cut other indoor crowds to seventy-five from November 25; Jefferson Parish and New Orleans followed.144 The federal layer: the Bureau of Prisons resumed non-contact visits only under plexiglass and capacity limits from October 3; CMS's visitation conditions and testing rule continued; the CDC's eviction moratorium ran to December 31 and Congress extended it to January 31, 2021; the FFCRA leave mandate ran to December 31; Proclamation 10052 was extended to March 31, 2021.145 On December 31, 2020, the winter caps governed every State in the Northeast, the West Coast, the upper Midwest, Colorado, Kentucky and Nevada; Advent, Hanukkah and Christmas fell under them.146
WS: the caps fell from the summer's levels in twenty-two jurisdictions, to ten persons or 25 percent in the New York zones, twenty-five or 25 percent in Rhode Island and Oregon, 25 percent in Massachusetts and the Chicago and Nevada regimes, and a prohibition in California's Tier 1 and the Regional Stay at Home counties; Christmas services were held under those caps or not at all. RE: Kentucky's, New York's, California's, Toledo's, Montgomery County's and New York City's orders closed public and private schools again; church child care operated under the winter rules. EV: indoor events were prohibited in Chicago, Boston, New York's zones, Massachusetts and the Regional Stay at Home counties, and capped at ten in most of the Northeast; the year-end fundraising season proceeded without events. FS: congregate dining closed again where indoor dining closed; shelters and day programs operated under congregate rules; the eviction moratoria governed housing programs. CR: visitation remained closed or conditioned. FC: every rental was prohibited or capped. VL, WF, HR, OP and CB were reached as in the prior quarters, with telework mandates re-imposed in Philadelphia, suburban Cook County, Wayne County and Iowa.147
During the calendar quarter beginning October 1, 2020 and ending December 31, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the cluster and winter orders of New York, Connecticut, New Jersey, Massachusetts, Rhode Island, Maine, Pennsylvania, Delaware, Maryland, the District of Columbia, Virginia, Kentucky, Michigan, Minnesota, Illinois, Wisconsin, Indiana, Iowa, North Dakota, Nebraska, California, Washington, Oregon, Nevada, New Mexico and Colorado, the metropolitan rollbacks of the largest metros, the school-closure orders, and the federal visitation, prison, eviction, leave and entry orders, caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by cutting the caps on every service, class, event and rental below the summer's levels, by prohibiting indoor events and cross-household gatherings, by closing schools again, and by keeping every visitation setting closed or conditioned.148
The first quarter of 2021
On January 1, 2021, the winter caps of the fourth quarter governed, and the quarter was one of stepped and partial relaxation. New York's zones continued into the spring, with the fixed caps enjoined and the percentage caps and school closures in force; New York lifted residential gatherings to ten and raised outdoor gatherings on March 22, 2021.149 New Jersey raised religious gatherings to 35 percent on February 5 and 50 percent on March 1, 2021, restated with a floor of twenty-five persons on March 19.150 Connecticut extended every order through April 19, 2021 on February 8 and lifted the caps on March 19, 2021.151 Massachusetts held every venue at 25 percent to February 8 and moved to Phase III Step 2 on March 1 and Phase IV Step 1 on March 22, 2021, with Boston, Cambridge and Somerville lagging each step.152 Rhode Island raised worship to 40 percent on February 25; Maine to five per thousand square feet or fifty on February 12 and 50 percent on March 26; Pennsylvania to 15 percent and 20 percent on March 1; Delaware to 50 percent or twenty-five on February 19; Maryland lifted its worship cap on March 12; the District held 25 percent or two hundred fifty; Virginia's Executive Order 72 ran to March 31.153 Kentucky's schools reopened January 4 under conditions and its 33 percent cap continued; Michigan's orders ran to March 19; Minnesota's, Illinois's and Indiana's caps stepped up through March; Iowa ended its general orders on February 7; Ohio's gathering order ran to April 5.154 California's Regional Stay at Home Order ended January 25, 2021; the Purple, Red and Orange tiers governed thereafter, with indoor worship prohibited in Tier 1 until the Supreme Court's order of February 5 and capped at 25 percent, then 50 percent; Santa Clara's indoor-gathering ban as applied to worship was enjoined on February 26, 2021.155 Washington's Roadmap Phase 1 (January 11) and Phase 2 (February 1) capped worship at 25 percent or two hundred; Oregon's county levels capped faith institutions at 25 percent or one hundred; Nevada's Directive 037 permitted 35 percent or one hundred from February 15; New Mexico's Red counties held 25 percent; Colorado moved to Level Orange on January 4 with county dials continuing; Hawaii's tiers held gatherings at five, then ten.156 The federal layer added the CDC conveyance order (February 1), the TSA directives, Executive Orders 13991, 13998 and 13999, Proclamation 10143 (January 25), the CDC testing order (January 26), the federal-workplace occupancy limit of 25 percent (January 24) and the Bureau of Prisons' securing of every institution from January 16 to 21, 2021; Congress re-enacted the Suspension Clause on March 11, 2021.157 On March 31, 2021, worship remained capped in California, Delaware, the District, Kentucky, Massachusetts, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, Washington and the Northeast's remaining orders, and the conveyance order governed every commute.158
WS: every service in the Northeast, the West Coast, the upper Midwest and the District was held under a percentage or fixed-number cap for all or most of the quarter, and Lent began under them. RE: schools reopened in hybrid form under quarantine and distancing rules; church child care under cohort rules. EV: indoor events remained prohibited or capped at ten to twenty-five in most of the Northeast into March. FS, CR, FC, VL, WF, HR, OP and CB were reached as in the fourth quarter, with the conveyance order added to every commute from February 1.
During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the winter orders as amended in the Northeast, the West Coast, the upper Midwest, Colorado, Kentucky, Nevada and the District of Columbia, the metropolitan orders, the school orders, and the federal conveyance, entry, testing, visitation, prison and workplace orders, caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by holding every service, class, event and rental under caps that stepped up only in February and March, by conditioning every school and child-care center, by keeping visitation closed or conditioned, and by conditioning every commute.159
The second quarter of 2021
On April 1, 2021, worship caps were in force in California (Blueprint tiers; recommendations from April 12; the Blueprint ended June 15), Delaware and the District (lifted May 21), Kentucky (June 11), Massachusetts (May 29), Michigan (June 22), Minnesota (May 28), Nevada (June 1), New Jersey (May 28; gathering limits June 4), New York (June 15), Oregon (June 30), Rhode Island (May 21) and Washington (June 30), and gathering caps governed events and rentals on the same schedules. Connecticut's worship caps had ended March 19, 2021, but its binding caps on indoor events (50 percent up to one hundred) and outdoor events (two hundred) ran to 11:59 p.m. May 20, 2021. Colorado's, Jefferson County's and Boulder County's dial orders kept capacity restrictions to May 15 and 16 and observation mechanisms to August 15, 16 and September 15, 2021; Honolulu's Tier 3 held gatherings at ten to June 9 and Tier 4 at ten and twenty-five thereafter; Illinois reached Phase 5 on June 11; Pennsylvania's mitigation orders expired May 31 and its face-covering order June 28; Maryland terminated eighteen of its orders on July 1 and the remaining fourteen and the state of emergency itself on August 15; Virginia's restrictions ended May 28.160 The Supreme Court enjoined California's three-household rule for religious gatherings in homes on April 9, 2021.161 Statewide face-covering orders for all persons, the airborne-transmission controls that had bound every indoor public place since the summer of 2020, had ended in Arkansas and Wisconsin on March 31, 2021 and ended in the States that carried them into the quarter on dates from April 6 (Indiana) and April 9 (Alabama) to June 28, 2021 (Pennsylvania), and continued for unvaccinated persons thereafter in California, Connecticut, Nevada, New Mexico, New York, Rhode Island, Washington and Hawaii.162 Every metro described above kept its face-covering and gathering orders, its exposure-control and assembly conditions, in force for some or all of the quarter; New York City's non-public-school order ran to May 10, its travel checkpoints to May 22; Boston's modified Phase 4 to May 29; Cambridge's to May 6, May 29 and June 15; Somerville's to May 29; Chicago's to June 11; Los Angeles County's to June 15; San Diego County's to June 15; Philadelphia's to June 10; Minneapolis's face-covering regulation to June 1; St. Louis City's and County's to May 13 and 14; Kansas City's to May 28; New Orleans's caps of 250 and 500 with event conditions through the quarter.163 The federal layer: the conveyance order and TSA directives (SD 1582/84-21-01A from May 12); Proclamations 10143 and 10199 (May 4); the land-border notifications; CMS's visitation memorandum of April 27 and LTC vaccine-reporting rule of May 21; the CDC's eviction moratorium extended June 24 to July 31; OSHA's Healthcare ETS from June 21; the Bureau of Prisons' modified operations; the federal-workplace principles.164 On June 30, 2021, the caps of Washington and Oregon, the Colorado county dial orders, Hawaii's Tier 4, the unvaccinated-person face-covering orders of eight jurisdictions, the emergencies of thirty-five States, the metropolitan emergencies of New York City, Boston, Minneapolis, Saint Paul, Seattle, Denver, New Orleans, Honolulu, Los Angeles, San Francisco and San Diego, and the whole federal layer were in force.165
WS: Holy Week and Easter (April 4, 2021), Passover (March 27 to April 4) and Ramadan (April 13 to May 12, 2021) fell under the caps in the thirteen jurisdictions that kept them, and every service in those jurisdictions was capped until the dates stated. RE: schools operated under quarantine, distancing and face-covering rules through the school year; child care under cohort rules. EV and FC: events and rentals were capped until the general limits ended, and in Honolulu, Colorado's counties and New Orleans through the quarter. FS: eviction moratoria, congregate-setting rules and the OSHA ETS governed housing and health-related programs. CR: visitation conditions continued under CMS and the State orders; prisons opened to limited visits only. VL and WF: the conveyance order governed every commute; quarantine orders removed exposed staff. HR: entry proclamations and the land-border restrictions continued. OP: office caps ended with the general orders between April and June. CB: the member base returned under caps until the caps ended.
During the calendar quarter beginning April 1, 2021 and ending June 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the worship and gathering caps that remained in force until dates between April 12 and June 30, 2021 in California, Delaware, the District of Columbia, Kentucky, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island and Washington and Connecticut's event caps to May 20, 2021, the metropolitan orders that outlasted the States', the school and child-care orders, and the federal conveyance, entry, border, visitation, eviction, prison and health-care orders, caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by capping every service, class, event and rental in the jurisdictions named until the caps' own end dates, by conditioning every school and child-care center, by keeping visitation conditioned, and by conditioning every commute.166
The third quarter of 2021
A. The Service's premise about the quarter, and what the statute asks
The Service's form letter says of the third quarter of 2021 what it says of every quarter:
there were no government orders related to COVID-19 in effect during the quarter
For this industry and this quarter the sentence is not an interpretation of the law; it is a statement about the public record, and the public record contradicts it on every day from July 1 to September 30, 2021. The statute asks three things about the quarter: whether the operation of employers in this industry was fully or partially suspended during it; whether that suspension was due to orders from appropriate governmental authorities limiting commerce, travel or group meetings due to COVID-19; and nothing else. It does not ask whether the orders were issued or in force within the quarter; "during the calendar quarter" modifies "suspended," not "orders" (the interconnected-economy section below). For this quarter the question does not arise, because orders were in force on every day of it, and this section lists them. The Notice adds, in words that bind the Service, that "An employer with business operations that are fully or partially suspended due to a governmental order during a portion of a calendar quarter is an eligible employer for the entire calendar quarter."167 This section answers those questions with the instruments, one by one, and then states the finding.
The premise and the record
The Service's premise for this quarter converts one date into a conclusion the record contradicts. The date is June 30, 2021, when the last statewide worship caps, Washington's and Oregon's, ended. The conclusion, that the end of the worship caps was the end of the orders, is factually incorrect. On July 1, 2021 the federal conveyance order governed every bus, train, airport and ferry in the country; the federal eviction moratorium governed every residential landlord, including every nonprofit housing provider; the CMS visitation conditions governed every nursing home; the OSHA Healthcare ETS governed every religiously affiliated hospital, nursing home, hospice and home-care agency; the entry proclamations and the land-border restrictions governed every foreign clergy member, mission team and convention delegate; the emergencies of thirty-five States were in force; the school and child-care orders of the 2021-22 year were being issued; and within the quarter the indoor face-covering orders of seven States and the District of Columbia (Hawaii's never lapsed; the others were reinstated within the quarter) and of more than a dozen metropolitan health authorities reached every sanctuary, hall, classroom and pantry in their jurisdictions, Hawaii capped social gatherings statewide at ten indoors and twenty-five outdoors, and thirteen States imposed face-covering, quarantine or staff-vaccination orders on every "public, private, and parochial" school and on church child care. Congress re-enacted the Suspension Clause for this quarter on March 11, 2021 and, on November 15, 2021, chose to terminate the fourth quarter and keep this one.168
B. The instruments in force July 1 to September 30, 2021
The Centers for Disease Control and Prevention's order of January 29, 2021, issued under 42 U.S.C. § 264 and 42 C.F.R. § 71.31(b), took effect at 11:59 p.m. on February 1, 2021 and remained in force "until further notice"; it required every person to wear a mask while boarding, disembarking and traveling on any conveyance into, within or out of the United States and at every transportation hub, and required every conveyance operator to use "best efforts" to ensure compliance, including by refusing boarding and disembarking non-compliant persons. The Transportation Security Administration enforced it by Security Directive 1582/84-21-01A (effective May 12, 2021; expiration September 13, 2021) and Security Directive 1582/84-21-01B (effective September 14, 2021; expiration January 18, 2022), with civil penalties, on every airport, commercial aircraft, bus, rail and transit system in the country. In force on July 1 and September 30, 2021. Functions reached: VL, WF and CB (every volunteer, employee and member who commuted by transit or flew); CR (every chaplain and visiting minister who traveled); HR and EV (every clergy call, mission team and convention delegate who flew).169
The CDC's order of June 24, 2021 halted residential evictions for nonpayment nationwide from July 1 through July 31, 2021; its order of August 3, 2021 halted them in counties of substantial or high transmission until the Supreme Court vacated the stay of the district court's judgment on August 26, 2021. The Federal Housing Finance Agency directed Fannie Mae and Freddie Mac to extend the REO eviction moratorium through July 31, 2021 by its release of June 24, 2021 (Ex. FED-354) and through September 30, 2021 by its release of July 30, 2021 (Ex. FED-355), the agency's releases being the public statements of those directions; the Federal Housing Administration's and the Department of Veterans Affairs' eviction moratoria ran through September 30, 2021; the Bureau of Consumer Financial Protection's Regulation X amendment took effect August 31, 2021. In force on July 1: the CDC order of June 24, 2021 and the FHFA, FHA and VA moratoria. In force on September 30: the agency moratoria and the CFPB rule. The CDC order of August 3, 2021 was in force from August 3 to August 26, 2021. Functions reached: FS (every nonprofit housing provider, shelter and supportive-housing program bound as a landlord or as a housing counselor to the moratoria's certifications) and CB (every tenant-member's household).170
CMS's QSO-20-39-NH as revised April 27, 2021 conditioned every nursing-home visit on screening, testing during outbreaks and facility-specific suspension; 42 C.F.R. § 483.80(h) required staff and resident testing; the CMS rule of May 21, 2021 required every long-term-care facility to report vaccination status; OSHA's Healthcare Emergency Temporary Standard, 29 C.F.R. § 1910.502, effective June 21, 2021 with compliance from July 6 and July 21, 2021, required every health-care employer to adopt a written plan, screen every entrant, mask and distance every person and remove and pay every exposed employee, and OSHA's DIR 2021-02 of June 28, 2021 governed its inspection; the Department of Veterans Affairs required vaccination of its Title 38 personnel from July 26, 2021 and of "volunteers and contractors who work in VHA facilities, visit VHA facilities or otherwise come into contact with VA patients" from August 13, 2021. In force on July 1 (CMS; OSHA) and September 30 (all). Functions reached: CR (every chaplaincy and visitation ministry in every nursing home, hospital and VA facility), HR and OP (every religiously affiliated health facility and its workforce), VL (every volunteer entering those facilities).171
The Bureau of Prisons' modified operations, in force since March 13, 2020, continued through the quarter under the visitation protocols announced September 30, 2020 (non-contact visits under plexiglass, distancing and capacity limits, suspended institution by institution on outbreak), the video-visiting rule of June 22, 2020 and the Attorney General's home-confinement directives; volunteer and contractor access remained limited to essential services. In force on July 1 and September 30. Functions reached: CR and VL (every prison ministry, chaplaincy volunteer and religious-education provider in the federal system).172
Proclamations 10143 and 10199 suspended the entry of most non-citizens present in the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa, India, China and Iran until Proclamation 10294 revoked them effective November 8, 2021; the Department of Homeland Security continued the land-border restrictions with Canada and Mexico by monthly notification (June 22 to July 21; July 22 to August 21; August 22 to September 21; September 22 to October 21, 2021); the CDC's Title 42 order of August 2, 2021 continued the suspension of entry of certain persons; the CDC's pre-departure testing order governed every arriving air passenger; the Safer Federal Workforce Task Force reinstated face coverings in every federal building on July 29, 2021, one of the workplace infection-prevention and exposure-control requirements of principles that also carried vaccination-attestation and meeting-size conditions, and required "on-site Federal contractors" to comply; Executive Order 14042 of September 9, 2021 directed vaccination clauses into federal contracts, and the Office of Management and Budget's determination of September 24, 2021 approved the Task Force guidance under it, reaching the faith-based and nonprofit contractors that run Head Start, refugee resettlement, housing and human-service programs under federal contracts; the Secretary of Health and Human Services renewed the public-health emergency on July 19, 2021; the Department of Agriculture's nationwide child-nutrition waivers governed every parochial school and summer meal site. In force on July 1 (entry, border, testing, PHE, waivers) and September 30 (all). Functions reached: HR (every foreign clergy call and religious-worker visa), EV (every international convention and mission), CR (every cross-border chaplaincy), OP and WF (every federal-contract program and its staff).173
Illinois's Executive Order 2021-20 (August 26, 2021) required that "all individuals in Illinois who are age two or over and able to medically tolerate a face covering ... shall be required to cover their nose and mouth with a face covering when in an indoor public place" from August 30, 2021, and required vaccination or weekly testing of health-care, school and State workers; Executive Order 2021-22 (September 3) re-issued it. Louisiana's Proclamation 137 JBE 2021 (August 2, 2021, effective August 4) reinstated universal indoor face coverings statewide, an airborne-transmission control on every indoor public place, and was renewed August 31 and September 28, 2021. Nevada's Directive 047 (July 27, 2021, effective July 30) reinstated indoor face coverings for every person in counties of substantial or high transmission, including Clark and Washoe; Directive 048 followed August 4 and the Emergency Directive of August 16, 2021 thereafter. New Mexico's Executive Order 2021-049 (August 16, 2021) renewed the emergency and the Public Health Emergency Order of August 17, 2021 reinstated indoor face coverings statewide from August 20, renewed September 15, 2021. Oregon's OAR 333-019-1025 (August 11 to 13, 2021) required a mask, face covering or face shield of every individual "regardless of vaccination status" in every indoor space, a face-covering rule standing alone and one of the airborne-transmission controls the State imposed on every indoor workplace. Washington's Secretary of Health Order 20-03.4 (August 19, 2021, effective August 23) required face coverings of every person in every indoor public setting, and Order 20-03.5 (September 13) extended the requirement to large outdoor events. Hawaii's statewide indoor face-covering order never lapsed, and the Governor's Emergency Proclamation of August 5, 2021 and Executive Order 21-05 of August 10, 2021 capped social gatherings statewide at ten indoors and twenty-five outdoors and limited restaurants, bars and gyms. The District of Columbia's Mayor's Order 2021-097 (July 29, 2021, effective July 31) reinstated indoor face coverings for every person over two in every indoor public setting and delegated to DC Health and the Office of the State Superintendent of Education the companion school and health-care conditions, and remained in force until November 22, 2021, the District recording its continuation and the vaccination-mandate compliance dates in its situational updates of August 16 and September 20, 2021. The unvaccinated-person face-covering orders of California, Connecticut, Nevada, New Mexico, New York, Rhode Island (Executive Order 21-69 to July 6, 2021; the Department of Health's Safe Activities regulation, 216-RICR-50-15-7, to August 31, 2021) and Washington were in force on July 1 (Pennsylvania's face-covering order had ended June 28, 2021); Connecticut's Executive Order 13A (August 5, 2021) continued them and delegated to the Commissioner of Public Health a list of settings where face coverings are required of the vaccinated. Each of these instruments imposed an occupational-health and airborne-transmission control on every indoor workplace and place of assembly in its jurisdiction; Illinois's, Connecticut's, Hawaii's and the District's carried companion conditions in the same instruments (vaccination or weekly testing of health-care, school and State workers; six-foot distancing as the alternative to a covering; statewide gathering caps and restaurant, bar and gym limits; delegated school and health-care rules), and Louisiana's, Nevada's, New Mexico's, Oregon's and Washington's are cited for the face-covering requirement each imposed on every indoor public place. Status: Hawaii and the unvaccinated-person orders in force July 1; Nevada from July 30; the District from July 31; Louisiana from August 4; Oregon from August 13; New Mexico from August 20; Washington from August 23; Illinois from August 30; every one in force September 30, 2021. Functions reached: WS (every sanctuary and hall in those States), RE, EV, FS and FC (every classroom, event, pantry and rental), OP (every office open to the public).174
New Jersey's Executive Order 251 (August 6, 2021, effective August 9) required that "All public, private, and parochial preschool programs and elementary and secondary schools ... must maintain a policy regarding mandatory use of face masks by staff, students, and visitors in the indoor portion of the school district premises"; Executive Order 253 (August 23, 2021) required every covered worker in those settings to prove full vaccination or submit to weekly testing from October 18, 2021; Executive Order 264 (September 20, 2021) extended the face-covering requirement to every child-care center. Connecticut's Executive Order 13A (August 5) and 13D (August 19, 2021) delegated and then fixed the school and child-care face-covering rules for the 2021-22 year. Kentucky's Executive Order 2021-585 (August 10, 2021) required that "All individuals - all teachers, staff, students, and visitors - must cover their nose and mouth with a face covering when indoors in all public and private preschool, Head Start, elementary, middle, and high schools (preschool through grade 12) in Kentucky ... regardless of vaccination status," and "All staff and visitors, and all children age 2 and older" in every child-care center; the Kentucky Board of Education's and the Cabinet for Health and Family Services' emergency regulations of August 12 (702 KAR 1:195E; 902 KAR 2:213E) followed; Executive Order 2021-585 ran until the General Assembly's House Joint Resolution 1 took effect on September 7, 2021, and the regulations until Senate Bill 1 of the Special Session nullified them on September 9, 2021. Illinois's Executive Order 2021-18 (August 4, 2021) required face coverings in every public and nonpublic school and day care. Delaware's order of August 13, 2021 (effective August 16) required face coverings in every public and private school and child-care facility. Pennsylvania's Order Directing Face Coverings in School Entities (August 31, 2021, effective September 7) reached every public and private school. New York's 10 NYCRR 2.60 (August 27, 2021) required face coverings in every school. Oregon's OAR 333-019-1015 (filed and effective August 2, 2021) required face coverings in every school, and OAR 333-019-1030 (August 25, 2021) required vaccination of every school worker by October 18, 2021. Washington's Proclamation 20-09.4 (July 30, 2021) required face coverings in every school and Proclamation 21-14.1 (August 20, 2021) required vaccination of every school, child-care and higher-education employee by October 18, 2021. California's Public Health Officer required face coverings in every K-12 school from July 12, 2021 and vaccination or testing of every school worker from August 11, 2021. Louisiana's 137 JBE 2021 reached every school. Virginia's Order of Public Health Emergency Ten (August 12, 2021) required face coverings in every public and private school. Rhode Island's Executive Order 21-87 (August 19, 2021) did the same. Prince George's County Public Schools announced that every student and staff member would be masked and that staff would be vaccinated or tested weekly from September 8, 2021 (Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-017; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-018, the school system's announcements, cited as context for the requirement and not as orders). Massachusetts's Department of Elementary and Secondary Education required face coverings of every public-school student over five and every staff member from August 25, 2021 under the Board's vote of August 24, an order on the schools that the children of this industry's workforce attend. In the metros, Dallas County's order of August 11, 2021 required face coverings in every child-care center and school, Harris County's Local Health Authority did so on August 12, Houston ISD on August 12 (kept in force under a Travis County injunction), the New York City Department of Health required vaccination of every employee and contractor of any school or pre-kindergarten program in a Department of Education building by September 27 and of every contracted child-care and after-school program's staff by the same date, Oakland and Wayne Counties required face coverings in every school and day care on August 24 and 27, Denver on August 17, the Tri-County Health Department on August 18 and September 1, Jefferson County (Colorado) on August 17 with testing of unvaccinated staff, Boulder County on August 10, Los Angeles Unified required vaccination of every employee and adopted a student mandate on September 9, and Fairfax County required vaccination or testing of every employee on August 23. Each of these school orders imposed workplace infection-prevention and exposure-control requirements on the school as an employer and on every parochial school and church child-care center within its terms: universal face coverings indoors, the quarantine and exclusion of exposed students and staff under the accompanying public-health rules, and, where the instrument so provided, vaccination-or-testing conditions on staff. Status: California, Washington, Oregon (from August 2), Kentucky (August 10 to September 7; regulations to September 9), Louisiana, Delaware, New Jersey, Connecticut, Virginia, Illinois, Rhode Island (August 19), Massachusetts (August 25, public schools), New York (August 27) and Pennsylvania (September 7) in force from the dates stated; every order except Kentucky's in force September 30, 2021. Functions reached: RE (every parochial and religious school, preschool, Head Start program and church child-care center, by the orders' own words "public, private, and parochial"), WF (every staff member and volunteer whose child attended a school under quarantine and face-covering rules), HR (every school employee under a vaccination-or-testing condition), VL (every school volunteer).175
B-8. The State health-care-worker orders reaching religiously affiliated facilities (Ex. CA-030; Ex. NY-071; Ex. NJ-056; Ex. WA-077)
California's State Public Health Officer required vaccination of every worker in hospitals, skilled-nursing and intermediate-care facilities by September 30, 2021 (order of August 5, 2021) and verification and testing of unvaccinated workers in the settings the order names from July 26, 2021; New York's 10 NYCRR 2.61 (August 26, 2021) required a first dose by September 27, 2021 of every hospital and nursing-home worker; New Jersey's Executive Order 252 (August 6, 2021) required vaccination or testing of every worker in health-care facilities and the congregate settings the order names by September 7, 2021; Washington's Proclamation 21-14 (August 9, 2021) required vaccination of every health-care worker by October 18, 2021; Oregon's OAR 333-019-1010 (August 5), Maine's emergency rule (August 12), Rhode Island's emergency regulation (August 17), Colorado's Board of Health rule (August 30), the District's Mayor's Order 2021-099 (August 10), Maryland's MDH Order 2021-08-05-01 (August 5), Illinois's Executive Order 2021-20 (August 26), Philadelphia's Board of Health regulation (August 16), Los Angeles County's order (August 12) and Denver's order (August 2, 2021) did the same in their jurisdictions. Delaware's Secretary's Orders of June 17 and 25, 2021 required every hospital, nursing facility and aide-only home-health agency to expand infection-control measures. Status: Delaware's orders and the OSHA standard in force on July 1; California's verification-and-testing order from July 26; every other order from the date stated; every one in force on September 30, 2021. Functions reached: CR (every hospital and nursing-home chaplaincy, whose volunteers and clergy were subject to the facilities' entry conditions), HR and OP (every religiously affiliated hospital, nursing home, hospice and home-care agency and its workforce).176
On July 1, 2021 the emergency declarations of thirty-five States were in force; on September 21, 2021, twenty-five, including Alabama, Arizona, Arkansas, California, Connecticut, the District of Columbia, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Nevada, New Mexico, North Carolina, Oregon, Rhode Island, Texas, Utah (whose Department of Health's public health emergency, State Public Health Order 2020-17, carried the State's place on the list after the Governor's emergency lapsed on December 8, 2020), Washington, West Virginia and Wyoming. Texas's disaster declaration was renewed monthly and Executive Order GA-38 (July 29, 2021) itself governed what every local authority could require; Georgia's Economic Recovery emergency (June 30, 2021, renewed July 22, August 19 and September 20) and Executive Order 08.19.21.03 governed what every business could be compelled to enforce; Arizona's emergency ran to March 30, 2022 and Executive Order 2021-16 (July 2, 2021) to September 29, 2021; North Carolina's Executive Order 224 (July 29, 2021) required its cabinet agencies' workers to verify vaccination or submit to face-covering and testing requirements; Alabama declared a new public-health emergency on August 13, 2021; Arkansas declared a public-health emergency from July 29 to September 27, 2021; Iowa continued its disaster emergency on July 23, August 19 and September 17, 2021; Indiana renewed its public-health emergency on June 30 and September 1, 2021; Nebraska declared a hospital-capacity emergency on August 26, 2021; Kansas ordered testing in every adult care home from June 18, 2021 and quarantine of unvaccinated travelers. The State eviction moratoria of California (AB 832, to September 30, 2021), Washington (Proclamation 21-09, July 1 to September 30, 2021), New Jersey (Executive Order 106, to January 1, 2022), Illinois (Executive Order 2020-30 series, to October 3, 2021), Minnesota (the phase-out statute) and New York (Subpart 66-3 and the moratorium statute to August 31, 2021, extended) governed every nonprofit housing provider. The Supreme Court of Texas's Thirty-Eighth (June 1 to August 1) and Fortieth (August 1 to October 1) Emergency Orders governed every court in Texas, and the Forty-Third Emergency Order (issued September 21, 2021, effective October 1, 2021) continued the regime after the quarter. Hawaii's Safe Travels program quarantined or tested every arriving traveler. Status: the emergencies of thirty-five States, the State eviction moratoria, the Texas Thirty-Eighth Emergency Order and Hawaii's Safe Travels program in force on July 1; Texas's GA-38 and North Carolina's Executive Order 224 from July 29, Arkansas's emergency from July 29 to September 27, Alabama's from August 13 and Nebraska's from August 26; every instrument except Arkansas's, Texas's Thirty-Eighth Order (to August 1) and the New York moratorium as originally set (August 31) in force on September 30, 2021. Functions reached: FS and CB (housing programs and tenant-members), OP (every organization's operating rules), EV and HR (travel).177
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, an airborne-transmission control imposed on every indoor workplace in the county, the City of Los Angeles, Long Beach and Pasadena within five days, and the County revised the order August 16 and 19; Sacramento and Yolo Counties from July 30; the eight Bay Area health officers from August 3, 2021, and San Francisco required proof of vaccination for entry to every indoor event of one thousand or more, bar, restaurant and gym from August 20, 2021. St. Louis City's Health Commissioner ordered face coverings of "Individuals, both vaccinated and unvaccinated, age 5 and older ... while in indoor and enclosed public buildings and spaces" from July 26, 2021, continued by Order No. 2 (2021) of August 30; St. Louis County's identical order of July 26 was enjoined as to enforcement from August 3. Jackson County ordered indoor face coverings from August 9, 2021, Johnson County (Kansas) required them in every K-6 school and school bus from the same day (Board of Health Order 001-21), and Kansas City from August 2. Atlanta ordered face coverings of "all persons in a public place, including private businesses and establishments" from July 28, 2021; Savannah required face coverings in every school, hospital, conveyance and City building from July 26 and, by Emergency Order 29 of August 24, 2021, barred groups over fifty on City property and closed every City community center and building to the public through September 23, 2021, and cancelled every Civic Center event and revoked every event permit in public spaces through September 30, 2021. Mecklenburg County's Board of Health rule requiring face coverings in every public place in Charlotte was adopted August 18, 2021 and in force from August 31, 2021. New Orleans ordered that "All individuals over the age of 2 ... are required to wear a face covering over the nose and mouth: At all times when in indoor spaces outside the household" from 6:00 a.m. July 31, 2021, and from August 16, 2021 required proof of vaccination or a negative test for entry to every restaurant, bar, gym, concert hall and "Event spaces (hotel ballroom, event venue, reception halls)"; Jefferson Parish required face coverings "when indoors in any place outside of a private residence" from August 4, 2021; East Baton Rouge required face coverings in every City-Parish building from July 30 and its school system required them of every student from August 3, 2021. Philadelphia required face coverings in "Any indoor setting" regardless of vaccination status unless the operator verified the vaccination of everyone present from August 12, 2021, and the Board of Health adopted it on August 13. Chicago ordered that "Any individual, regardless of vaccination status ... shall be required to wear a mask when indoors in any public place" from August 20, 2021, with closure as the sanction for a business that failed to enforce it; suburban Cook County followed on August 23 and Oak Park on August 6, 2021. Boston's Public Health Commission ordered face coverings whenever indoors "on the premises of a business, club, place of assembly or other place that is open to members of the public" from 8:00 a.m. August 27, 2021 "until rescinded," and imposed an eviction moratorium on August 31; Somerville from August 20; Cambridge from September 3, with houses of worship named on September 15; Brookline from August 27; Worcester's municipal buildings from August 12 and every school from September 7, 2021. Honolulu's Tier 5 order of July 2, 2021 kept face coverings indoors and Exhibit B conditions on every designated business, its amendment of August 23 held social gatherings at ten indoors and twenty-five outdoors, and the Safe O'ahu Response Plan of September 17, 2021 (effective September 22) closed every indoor and outdoor event category, capped funerals at ten and twenty-five and confined restaurants and bars to seated service at 50 percent; Maui's and Kauai's rules ran throughout. Denver required vaccination of the personnel of hospitals, care facilities, shelters, schools and child-care centers by September 30, 2021 (order of August 2) and required face coverings in every school and child-care facility from August 17; Boulder County required them in every indoor public space from September 3, 2021. King County ordered face coverings in every indoor public space and at every outdoor event of five hundred or more from September 7, 2021, and on September 16, 2021 issued its vaccination-verification order for indoor venues and outdoor events effective October 25 (issued within the quarter; not in force on any day of it). Dallas County's face-covering order of August 11, 2021 required "universal indoor masking for all employees and visitors" in every commercial entity, child-care center, school and county building, with a $1,000 fine per violation, and operated through the quarter while the Supreme Court of Texas stayed and unstayed the trial court's orders (August 15 and 19, 2021) and the Texas Education Agency declined to enforce GA-38's face-covering provision "as the result of ongoing litigation"; Harris County's school order (August 12) and county-building order (August 17) followed. Montgomery County (Maryland) required face coverings in every indoor public location from August 7, 2021 and Prince George's County from August 8, 2021 (Executive Order 18-2021, issued August 5, 2021, Ex. MET-DCM-128, recited in Executive Order 22-2021 of October 4, 2021, Ex. MET-DCM-047, a post-period order); Fairfax and Alexandria's circuit courts from August 2 and 4. Saint Paul required face coverings on every City-controlled property from August 3, Ramsey and Hennepin Counties every county facility from August 3 and 4, 2021. New York City's Department of Health issued its school-staff, contractor and child-care vaccination orders on August 24 and September 12, 2021. Salt Lake City required face coverings in every City building and vehicle from July 28, 2021 (Executive Order 3 of 2021) and in every K-12 school in the City from August 20, 2021 (Emergency Order B of 2021), extended by the City Council on September 14; Salt Lake County's K-6 face-covering order of August 11, 2021 was terminated by the County Council the following day and is not counted. The courts of Clark County (July 19), Maricopa County (August 9), Harris County (August 12), Cuyahoga County (August 5), Franklin County (August 6), Marion County (August 16), Allegheny County (August 10), Hamilton County (August 11) and the 24th Judicial District Court for Jefferson Parish, Louisiana (orders of July 21 and 30, 2021, effective July 22 and August 2) required face coverings of every entrant. Every one of these local instruments imposed an occupational-health and airborne-transmission control on every indoor workplace and place of assembly within its reach, and the companion controls the same instruments carried are stated above where they existed: proof of vaccination or a negative test at the door (San Francisco; New Orleans), closure as the sanction for non-enforcement (Chicago), a fine of up to $1,000 per violation (Dallas County), gathering caps, event closures and permit revocations (Honolulu; Savannah), workforce vaccination (Denver) and verification of vaccination as the alternative to coverings (Philadelphia). Status: each in force from the date stated, except King County's vaccination-verification order, which took effect October 25, 2021 and is not counted; every one except the St. Louis County enforcement and the Savannah July 26 order (superseded August 24) in force on September 30, 2021, Savannah's Emergency Order 29 by its event cancellations and permit revocations, its face-covering, gathering and closure provisions having run to September 23, 2021. Functions reached: WS, RE, EV, FS, FC and OP in every metro named, which together hold the largest concentrations of congregations and nonprofits in the country.178
The California Department of Corrections required vaccination verification or testing of every "registry provider" and "other contract worker" and every visitor from August 2, 2021; the Colorado Department of Corrections required vaccination of every staff member in its 24/7 facilities by the Board of Health's rule of August 30, 2021 and, on September 28, 2021, announced that every contract employee, visitor, volunteer and vendor entering a prison would be required to show proof of a first dose from October 7, 2021, a post-period requirement cited only to show the continuity of the regime; Texas resumed visitation in August 2021 only on vaccination-conditioned, capped terms; the New Jersey Department of Corrections' announcement of May 1, 2021 records the provisional visitation conditions that continued through the quarter (Ex. AGY-ST-CORRECTIONS-EMA-GUARD-020, the department's announcement, cited as context for those conditions and not as an order). The Mescalero Apache Tribe re-imposed face coverings on every enterprise and contractor employee "regardless of vaccination status" on August 20, 2021 and continued every earlier provision; the Yakama Nation's face-covering order with fines and its Reopening Plan phases remained in force; the Navajo Nation's Safer at Home order and nightly curfew (Public Health Emergency Order 2021-012, June 18, 2021), the curfew discontinued and Safer at Home re-stated August 4, 2021 (Public Health Emergency Order 2021-016) and continued under Orange Status from August 12 (Public Health Emergency Order 2021-017), together with its face-covering mandate and gathering limits, governed every congregation and pantry on the Nation, and its Safe Schools Framework bound every school and Head Start from July 8, 2021. Puerto Rico's OE-2021-043 (June 3, 2021, effective June 7) held indoor occupancy at bars and venues to 50 percent and ran to July 4, 2021 (Ex. AGY-TERRITORIES-030); OE-2021-054 (July 1, 2021) delegated the pandemic measures to the Secretary of Health, whose face-covering orders remained in force (Ex. AGY-TERRITORIES-031); Executive Order 2021-065 (August 30, effective September 2) required face coverings in every indoor space and outdoors where fifty or more gathered; Guam's Executive Order 2021-19 (August 20) imposed vaccination conditions on entry to establishments and limited social gatherings; the Virgin Islands' Twenty-Seventh Supplemental Order (August 6, effective August 13) limited mass gatherings to fifty persons. Status: Puerto Rico's OE-2021-043 in force July 1 to July 4, 2021 and OE-2021-054 from July 1 onward; the rest in force from the dates stated through September 30, 2021, except the Colorado visitor requirement (October 7, 2021). Functions reached: CR and VL (prison ministries), WS, RE, EV, FS and HR (the tribal and territorial congregations and nonprofits).179
The Supreme Court of the United States kept its building closed to the public through the quarter; the Northern District of Illinois's plan for the resumption of jury trials (May 26, 2021, amended September 15), its face-covering order of July 30, 2021 and its criminal-case procedures order of June 21, 2021 (through October 4), the District of New Jersey's court-operations order of September 3, 2021 and visitor vaccination-and-testing order of September 13, 2021, the District of Maryland's Phase Three order, the Northern District of California's reopening order of June 23, 2021 and the Central District of California's face-covering order governed every federal courthouse in the largest metros; the State courts of Texas, Georgia, Arizona, Nevada, Ohio, Indiana, Pennsylvania, Louisiana and Maryland required face coverings of their entrants as the exposure-control condition of entry and limited their dockets as stated above. Status: in force on July 1 and September 30, 2021. Functions reached: FS (legal-aid dockets), CR (guardianship and adoption proceedings), CB (every member with a housing or benefits matter).180
C. How they reached the functions
WS. Every service in Illinois, Louisiana, Nevada's populous counties, New Mexico, Oregon, Washington, Hawaii and the District of Columbia, and in Los Angeles, the Bay Area, Sacramento, St. Louis, Kansas City, Atlanta, Savannah, New Orleans, Jefferson Parish, Philadelphia, Chicago and suburban Cook County, Boston, Somerville, Cambridge, Brookline, Honolulu, Boulder County, King County, Dallas County and the Maryland suburbs was held from the dates stated under an order imposing airborne-transmission controls that required every attendee to wear a face covering, and in Hawaii under a statewide cap of ten indoors and twenty-five outdoors from August 10, 2021. A face-covering requirement, imposed on a congregation as one of the infection-prevention and exposure-control conditions of assembly, changes the service: it ends unmasked singing, communion by common cup, the passing of the peace and the greeting line, it requires ushers to enforce a rule against members, and it requires signage, supplies and refusal of entry. The Notice 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."181
RE. Every parochial school, religious preschool, Head Start program and church child-care center in New Jersey, Connecticut, Kentucky (to September 7 and 9), Illinois, Delaware, Pennsylvania (from September 7), New York, Oregon, Washington, California, Louisiana, Virginia and Rhode Island, and in the Texas, Colorado, Michigan, Utah, Maryland and New York City districts named, opened the 2021-22 year under a face-covering order and the quarantine and exclusion rules that accompanied it, the schools' infection-prevention and exposure-control regime for the year, and, in New Jersey, Connecticut, Washington, Oregon, California and New York City, a staff vaccination-or-testing condition; every religious-education class held in a school building was held under the same rules.
EV. Every gala, festival, convention and fundraiser in the face-covering jurisdictions was held under a face-covering order, an airborne-transmission control on every attendee and every venue employee; every event in Honolulu was capped at ten indoors and twenty-five outdoors from August 10 and every event category was closed from September 22, 2021; every event in a New Orleans hotel ballroom or reception hall from August 16 and in a San Francisco venue of one thousand or more from August 20 required proof of vaccination or a negative test of every attendee; every event on Savannah City property was capped at fifty through September 23 and every event permit revoked through September 30, 2021; every international delegate was subject to the entry proclamations.182
FS. Every pantry, kitchen, shelter and day program in the face-covering jurisdictions operated under a face-covering order as an exposure-control condition of service; every shelter and supportive-housing provider operated under the CDC, agency and State eviction moratoria and their certification rules; every congregate setting in New Jersey, Connecticut, California and the District operated under the congregate-setting face-covering and vaccination conditions; every nonprofit health program operated under the OSHA Healthcare ETS; every summer meal site under the USDA waivers.183
CR. Every hospital, nursing home, hospice and VA facility in the country conditioned visitation on screening and, in outbreaks, suspended it under the CMS memorandum of April 27, 2021; every facility in California, New York, New Jersey, Washington, Oregon, Maine, Rhode Island, Colorado, Maryland, the District, Illinois, Philadelphia, Los Angeles County and Denver required vaccination of its workforce, and its entry rules for chaplains and volunteers followed; every federal and State prison in the country limited volunteer entry, and California, Colorado and Texas conditioned it on vaccination or testing.
FC. Every rental in the face-covering jurisdictions carried the face-covering order and the exposure-control conditions it imposed on every attendee; every rental in Honolulu the gathering cap; every reception in a New Orleans hall or a San Francisco venue of one thousand or more the vaccination-or-test condition; every rental on Savannah City property the fifty-person cap through September 23 and the permit revocation through September 30.
VL and WF. Every volunteer and employee who rode a bus, train or ferry did so under the CDC order and the TSA directives on every day of the quarter; every parent among them had a child in a school under face-covering and quarantine rules; every exposed employee in San Diego, Los Angeles, Long Beach, Pasadena and the other counties with quarantine orders was removed from the premises for seven to fourteen days; every employee of a school, health facility or federal contractor was subject to a vaccination-or-testing condition from the dates stated.184
HR. Every foreign clergy call, religious-worker visa and mission team was subject to the entry proclamations and the land-border restrictions on every day of the quarter; every school, health-care and federal-contract employee was subject to a vaccination-or-testing condition from the dates stated.
OP. Every office open to the public in the face-covering jurisdictions operated under the face-covering order, the exposure-control requirement imposed on every commercial building and office open to the public (Chicago's and Cook County's orders named "commercial buildings"; Cambridge's and Brookline's named building common areas); every federal-contract program under the Task Force principles and Executive Order 14042; every nonprofit in Georgia under Executive Order 08.19.21.03's rule on what it could be compelled to enforce; every nonprofit in Texas under GA-38 and the county orders that stood against it.185
CB. Every member and donor who attended did so under an airborne-transmission control in the face-covering jurisdictions and under a cap in Hawaii; every tenant-member's household was under the eviction moratoria; every member who traveled was under the conveyance and entry orders.
D. The continuing-suspension analysis
The suspension of this industry's operation during the third quarter of 2021 rests on four independent pathways, any one of which suffices and all four of which are established. First, the text: the clause asks whether the operation "is fully or partially suspended during the calendar quarter due to orders"; the phrase "during the calendar quarter" modifies "suspended," and Congress did not write "orders in effect during the quarter." An operation that was suspended in part on a day within the quarter because of an order satisfies the clause whether the order issued that day or fifteen months earlier.186 Second, Tri-State's definition: a suspension is "a temporary delay, interruption, or termination," and the delay in restoring an operation that an order dismantled is itself a suspension due to the order that dismantled it; but for the order, no delay would have occurred.187 Third, the Notice's own words: "An employer with business operations that are fully or partially suspended due to a governmental order during a portion of a calendar quarter is an eligible employer for the entire calendar quarter," and Q&A-16(4) recognizes that a suspension an order caused persists for "some adjustment period" after the order operates, deeming a "significant delay ... in moving operations" itself "a partial suspension during that transition period"; the two-week illustration is offered "for example," and the Service is bound by both passages.188 Fourth, the orders in force in the quarter, inventoried in subpart B, each an order limiting commerce, travel or group meetings in terms, in force on days within the quarter, and each causing a compelled modification of a function of this industry on the day it applied.
The restoration arithmetic from the orders' own steps
The orders that governed worship did not end on a single day; they ended by steps whose dates the orders themselves fix, and the last step in every one of the thirteen jurisdictions that kept caps into the second quarter of 2021 took effect between April 12 and June 30, 2021. New Jersey's sequence was: every gathering cancelled (March 21, 2020); indoor gatherings at 25 percent or fifty (June 9, 2020); religious gatherings at one hundred (August 4) and 25 percent or one hundred fifty (September 4, 2020); the same through the winter while every other indoor gathering fell to ten (November 17, 2020); 35 percent (February 5, 2021); 50 percent (March 1, 2021); no percentage cap (May 28, 2021) and no indoor gathering limit (June 4, 2021): fourteen months from the first order to the last step, and thirty-four days (twenty-seven days from the last step) to the quarter's first day.189 New York's sequence was: every gathering of any size cancelled (March 23, 2020); ten (May 21); 25 percent (June 6); 33 percent; the cluster zones' 25 percent or ten and 33 percent or twenty-five (October 6, 2020); the fixed numbers enjoined (November 25 and December 28, 2020) with the percentage caps remaining; 50 percent under mandatory guidance into 2021; limits lifted June 15, 2021 and the emergency ended June 24, 2021: sixteen days from the last step, and seven days from the end of the emergency, to the quarter's first day.190 California's sequence was: every gathering prohibited (March 19, 2020); 25 percent or one hundred (May 25, 2020); indoor worship closed in the monitored counties (July 13, 2020); Tier 1 prohibition and Tier 2 to 4 caps of 25 and 50 percent (August 31, 2020); the Regional Stay at Home Order (December 6, 2020 to January 25, 2021); the Tier 1 prohibition enjoined (February 5, 2021); the caps made recommendations (April 12, 2021); the Blueprint ended (June 15, 2021): sixteen days before the quarter opened, and thirty-two days before Los Angeles County reinstated universal indoor face coverings.191 Washington's and Oregon's caps ended June 30, 2021, the day before the quarter opened, and both States reinstated indoor face-covering orders within the quarter.192 Kentucky's caps ended June 11, 2021, and its school and child-care face-covering order issued August 10.193 Connecticut's caps ended March 19, 2021 and its worship section was repealed May 20, 2021; its Executive Order 13A of August 5, 2021 reinstated and delegated face-covering rules.194 Minnesota's ended May 28, Massachusetts's May 29, Nevada's June 1, Michigan's June 22, Delaware's and the District's May 21, Maryland's March 12, 2021.195 A congregation whose sanctuary was ordered closed in March 2020, opened at 25 percent in the summer of 2020, cut to ten or 25 percent in the winter, raised to 35 and 50 percent in the spring of 2021 and freed of its cap between May 21 and June 30, 2021 had not restored its attendance, its volunteer corps, its choir, its classes, its rentals, its events or its collections on July 1, 2021; the Pew Research Center's survey of March 22, 2021 found 12 percent of congregations "open and operating normally" three months before the last caps ended, and the Johns Hopkins series found the nonprofit workforce still 30 percent short of its lost jobs in October 2021.196 The analogy is exact: an employer whose operation was ordered suspended through June 30 was not walking normally on July 1.
What the orders compelled this industry to dismantle
Between March 2020 and June 2021 the orders compelled congregations and nonprofits to cancel or cap every service, to close every school and classroom and reopen them in hybrid and cohort form, to cancel every gala, festival and convention for at least one full season, to convert every kitchen to take-away and every pantry to drive-through, to end every hospital, nursing-home and prison visit, to cancel every rental, to send every office worker home, to release or furlough staff (288,700 in NAICS 813 in two months; 1.6 million nonprofit jobs by May 2020), and to disperse a volunteer corps that exceeds paid staff several times over. Rehiring, re-enrolling students, rebooking events and rentals a year or more ahead, reassembling choirs and volunteer rosters, and rebuilding in-person collections are operations measured in seasons, and the orders' own phase steps show that the last of the compelled dismantling was reversed only in the weeks before the quarter opened.197
E. The answers to the Service's grounds for the quarter
No orders in effect
Subpart B lists twelve groups of instruments, more than forty classes in all, in force on days within the quarter, each with its exhibit identifier. The sentence is factually incorrect for this quarter in every State.
The ground that the orders had lifted
The worship caps had lifted. The conveyance, eviction, visitation, health-care, prison, entry, border, workforce and contracting orders had not; the face-covering, gathering, school, child-care and health-care-worker orders of seven States and the District of Columbia, thirteen school-order States and more than a dozen metros issued within the quarter; and the continuing suspension of an operation an order dismantled is a suspension "during the calendar quarter" on the text, on Tri-State and on the Notice's own Q&A-22 and Q&A-16(4). The Service's phrase for the continuing suspension describes the statute's own subject.198
Face coverings and modifications had only a nominal effect
The Notice's categorical sentence on masks is a factual conclusion stated as a rule with no record, describes an article of equipment rather than the occupational-health and airborne-transmission regime the instruments imposed (face coverings as one of the workplace infection-prevention and exposure-control requirements, enforced by fines, closure and refusal of entry and accompanied where the instrument so provided by vaccination-or-testing conditions, distancing, gathering caps and proof of vaccination at the door), contradicts the Notice's own first paragraph of Q&A-18 (which lists face-covering requirements among compelled modifications), and contradicts the United States' own representation to the District Court that "employees having to wear face masks may impact business operations" and that face-covering and hours orders are "considered." An exposure-control order that masks a choir, a communion rite, a children's classroom or a food line changes what each of those operations is, and the orders themselves state the change; and the third-quarter instruments include gathering caps (Hawaii; Savannah; Honolulu), event closures (Honolulu), vaccination-proof conditions (New Orleans; San Francisco), eviction moratoria, visitation conditions and vaccination mandates, none of which is a mask.199
The orders reached customers, schools, hospitals and venues, not the employer
The statute names the order's subject, not its addressee; Q&A-12 and the United States' third-party admission apply the clause to orders addressed to others; and an order on a congregation's school, its members' children, its members' hospital, its gala's venue and its volunteers' bus is an order limiting the commerce, travel and group meetings on which the congregation's operation depends.200
The instruments are guidance
Every instrument in subpart B is an order, proclamation, directive, rule or regulation of a governmental authority carrying a sanction (fines, closure, refusal of entry, loss of license, exclusion from a contract, removal from a conveyance); the Notice itself provides that an instrument's character as an order is "determined without regard to the level of enforcement." Where a document was an advisory (the July 26, 2021 recommendation of the Puget Sound health officers; the July 23, 2021 New Orleans advisory; the Northern Virginia health directors' recommendation of August 3, 2021), this analysis so labels it and does not rely on it.201
F. The finding
During the calendar quarter beginning July 1, 2021 and ending September 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the federal conveyance order and Transportation Security Administration directives (Ex. FED-020, Ex. FED-051, Ex. FED-052), the federal eviction and housing moratoria (Ex. FED-025, Ex. FED-026, Ex. FED-354, Ex. FED-355, Ex. FED-364, Ex. FED-378, Ex. FED-379), the CMS visitation conditions and the OSHA Healthcare Emergency Temporary Standard (Ex. FED-156, Ex. FED-092, Ex. FED-094, Ex. FED-080, Ex. FED-081), the Bureau of Prisons' modified operations (Ex. SEC-16-095, Ex. AGY-FED-HEALTH-OTHER-078), the entry proclamations and land-border notifications (Ex. FED-207, Ex. FED-208, Ex. FED-232 to Ex. FED-235, Ex. FED-255 to Ex. FED-258), Executive Order 14042 and the federal workplace principles (Ex. FED-063, Ex. FED-272), the indoor face-covering reinstatements of Illinois, Louisiana, Nevada, New Mexico, Oregon, Washington, Hawaii and the District of Columbia (Ex. SEC-16-115, Ex. IL-042, Ex. LA-036, Ex. NV-041, Ex. NM-067, Ex. OR-048, Ex. WA-078, Ex. HI-024, Ex. HI-025, Ex. DC-057) and Hawaii's gathering caps (Ex. HI-025), the school and child-care face-covering and staff-vaccination orders of New Jersey, Connecticut, Kentucky, Illinois, Delaware, Pennsylvania, New York, Oregon, Washington, California, Louisiana, Virginia and Rhode Island (Ex. SEC-16-117, Ex. SEC-16-118 (Executive Order 253, issued August 23, 2021, whose vaccination-or-testing deadline fell on October 18, 2021; cited for its issuance and its immediate policy and mask-exemption documentation commands, Ex. NJ-057, ¶ 9), Ex. NJ-058, Ex. SEC-16-119, Ex. CT-054, Ex. SEC-16-043, Ex. KY-053, Ex. KY-054, Ex. IL-040, Ex. DE-044, Ex. PA-042, Ex. NY-073, Ex. OR-045, Ex. OR-052, Ex. WA-075, Ex. WA-079, Ex. CA-034, Ex. CA-033, Ex. LA-036, Ex. VA-044, Ex. RI-055) and Massachusetts's public-school face-covering requirement (Ex. MA-071), the health-care-worker orders reaching religiously affiliated facilities (Ex. CA-030, Ex. CA-031, Ex. NY-071, Ex. NJ-056, Ex. WA-077, Ex. OR-046, Ex. ME-061, Ex. RI-072, Ex. CO-055, Ex. SEC-04-059, Ex. DC-075, Ex. MD-057, Ex. MET-PHL-021, Ex. MET-LA-023, Ex. MET-DEN-023), the State emergencies and eviction moratoria (Ex. TX-001, Ex. TX-036, Ex. TX-038, Ex. GA-041, Ex. GA-059, Ex. GA-043, Ex. AZ-001, Ex. AZ-044, Ex. UT-025, Ex. NC-001, Ex. NC-031, Ex. AL-052, Ex. AR-017, Ex. IA-039 to Ex. IA-041, Ex. IN-065, Ex. IN-071, Ex. NE-068, Ex. KS-052, Ex. ECO-C-101, Ex. ECO-C-084, Ex. ECO-C-081, Ex. ECO-C-091, Ex. NY-133), the metropolitan Delta-wave orders (Ex. MET-LA-018, Ex. MET-LA-019, Ex. MET-SFO-071, Ex. MET-SFO-010, Ex. MET-SFO-011, Ex. MET-SAC-015, Ex. MET-STL-021, Ex. MET-STL-022, Ex. MET-KC-045, Ex. MET-KC-067, Ex. MET-ATL-063, Ex. MET-ATL-016, Ex. MET-ATL-017, Ex. MET-CLT-001, Ex. MET-MSY-027, Ex. MET-MSY-029, Ex. MET-MSY-063, Ex. MET-PHL-019, Ex. MET-PHL-020, Ex. MET-CHI-026, Ex. MET-CHI-041, Ex. MET-CHI-049, Ex. MET-BOS-013, Ex. MET-BOS-063, Ex. MET-BOS-036, Ex. MET-BOS-040, Ex. MET-HNL-032, Ex. MET-HNL-033, Ex. MET-HNL-037, Ex. MET-DEN-024, Ex. MET-DEN-033, Ex. MET-SEA-002, Ex. MET-DFW-028, Ex. MET-DFW-031, Ex. MET-HOU-038, Ex. MET-HOU-039, Ex. MET-DCM-023, Prince George's County Executive Order 18-2021 (issued August 5, 2021, effective August 8, 2021) (Ex. MET-DCM-128; recited in Ex. MET-DCM-047), Ex. MET-MSP-041, Ex. MET-NYC-040, Ex. MET-NYC-043, Ex. MET-DET-013, Ex. MET-DET-015, Ex. MET-SLC-029, Ex. MET-SLC-030, Ex. MET-SLC-034), the corrections, tribal and territorial orders (Ex. AGY-ST-CORRECTIONS-EMA-GUARD-009, Ex. AGY-TRIBAL-040, Ex. AGY-TRIBAL-054, Ex. AGY-TRIBAL-021, Ex. AZ-078, Ex. AZ-081, Ex. AZ-082, Ex. AGY-TERRITORIES-036, Ex. AGY-TERRITORIES-110, Ex. AGY-TERRITORIES-065), and the court orders (Ex. FED-297, Ex. FED-299, Ex. FED-307, Ex. FED-308, Ex. MET-LAS-019, Ex. MET-PHX-016), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by imposing on every service, class, event and rental in the face-covering jurisdictions the airborne-transmission controls that required every attendee to wear a face covering and every congregation to enforce the rule; by capping every gathering in Hawaii and on Savannah's property; by conditioning entry to every event space in New Orleans and San Francisco on proof of vaccination or a negative test; by opening every parochial school and church child-care center in thirteen States under face-covering, quarantine and staff-vaccination orders; by conditioning every hospital, nursing-home and prison visit and every religiously affiliated health facility's workforce; by conditioning every commute and every volunteer's trip on a federal face-covering order; by governing every nonprofit housing provider's tenancies; by suspending every foreign clergy call and international mission; by directing vaccination clauses into every federal human-service contract; and by continuing, through those orders, the delay in restoring the operations that the orders of the five preceding quarters had compelled this industry to dismantle.202
What this analysis does not claim was in force
This analysis does not claim that any statewide worship cap was in force on any day of the third quarter of 2021; the last of them ended on June 30, 2021 (Washington, Ex. WA-065 and Ex. WA-072; Oregon, Ex. OR-043), and the others on the dates stated in subpart D (Ex. NJ-050, Ex. MN-038, Ex. MA-048, Ex. NV-038, Ex. NV-074, Ex. KY-049, Ex. NY-057, Ex. MI-076, Ex. CT-037, Ex. CT-046, Ex. DE-038, Ex. DC-073, Ex. MD-026, Ex. SEC-16-093). It does not claim that any stay-at-home order of any State was in force. Puerto Rico's Sunday lockdowns ended on January 8, 2021 (Administrative Bulletin OE-2021-010, Ex. AGY-TERRITORIES-020), and its general capacity and curfew regime lapsed with OE-2021-043 on July 4, 2021 (Ex. AGY-TERRITORIES-030), the first four days of the quarter, after which OE-2021-054 (July 1, 2021, Ex. AGY-TERRITORIES-031) delegated the pandemic measures to the Secretary of Health, whose face-covering orders remained in force; the Navajo Nation's Safer at Home orders (Ex. AZ-078; Ex. AZ-081) are tribal orders stated in subpart B-11. It does not claim that the Families First Coronavirus Response Act's leave mandate was in force (it ended December 31, 2020, Ex. FED-170, Ex. ECO-B-003). It does not claim that the CDC's eviction moratorium was in force after August 26, 2021 (Ex. FED-026). It does not claim that the OSHA vaccination-and-testing standard (November 5, 2021, Ex. FED-086), the CMS omnibus staff-vaccination rule (November 5, 2021, Ex. FED-095), Proclamation 10294 (November 8, 2021, Ex. FED-209), New York City's private-employer mandate (December 13, 2021), Boston's B Together order (December 20, 2021), Chicago's and Cook County's vaccination-proof orders (January 3, 2022, Ex. MET-CHI-042), King County's vaccination-verification order (issued September 16, 2021, effective October 25, 2021, Ex. MET-SEA-001), the Navajo Nation's Orange Status continuation of October 18, 2021 (Ex. AGY-TRIBAL-022), the Colorado Department of Corrections' visitor requirement of October 7, 2021 (Ex. AGY-ST-CORRECTIONS-EMA-GUARD-093), the Supreme Court of Texas's Forty-Third Emergency Order (issued September 21, 2021, effective October 1, 2021, Ex. ECO-C-071) or the Head Start face-covering and vaccine rule (November 30, 2021, Ex. AGY-FED-HEALTH-OTHER-090) was in force; each is post-period and is cited, where at all, only to show the continuity of the regime. It does not claim that the school-closure orders of 2020 (Ex. SEC-16-041, Ex. MET-HOU-040, Ex. MET-DFW-049, Ex. MET-LA-009), the July 2020 indoor-worship closures of California (Ex. CA-010), the cluster caps of New York (Ex. SEC-16-073), the winter caps of the Northeast, the West Coast and the upper Midwest (Ex. SEC-16-044, Ex. CT-031, Ex. MA-040, Ex. RI-029, Ex. RI-032, Ex. RI-035, Ex. PA-022, Ex. DE-033, Ex. MD-021, Ex. DC-014, Ex. VA-016, Ex. KY-033, Ex. MI-059, Ex. MN-032, Ex. IL-031, Ex. CA-020, Ex. WA-047, Ex. OR-035, Ex. NV-030, Ex. NM-047), the New York City checkpoint and non-public-school orders (Ex. MET-NYC-044, Ex. MET-NYC-013), the Boston, Cambridge and Somerville rollbacks (Ex. MET-BOS-010, Ex. MET-BOS-057, Ex. MET-BOS-067), the Chicago Stay-at-Home Advisory and Tier 3 (Ex. MET-CHI-024, Ex. MET-CHI-027), the Denver Level Red and Home by 10 orders (Ex. MET-DEN-027), the St. Louis County Safer At Home order (Ex. MET-STL-074), or the Texas county face-covering orders of 2020-21 (Ex. MET-DFW-023, Ex. MET-HOU-023) were in force; each had ended before July 1, 2021 on the dates its own text or successor fixes. The proof for the quarter rests on none of them; it rests on the instruments in subpart B, every one of which was in force on a day between July 1 and September 30, 2021 by its own effective and end dates.203
The quarter the Service's letters most often dispute. The record shows these instruments in force on this industry's functions between July 1 and September 30, 2021; an order in force on any day of the quarter is an order in force during it, and the State, metropolitan and federal layers on the quarter page add to the list.