The governmental orders by layer
The orders that reached the rental and leasing industry came from every layer of government: the President, the Centers for Disease Control and Prevention, the Transportation Security Administration and the Department of Homeland Security at the federal level; every governor and State health officer; the county judges, mayors and health officers of every large metropolitan area; the motor-vehicle agencies, airport authorities, occupational-safety agencies and convention authorities that regulate the industry's transactions and premises; and the authorities that ordered the industry's customers, suppliers, venues and workforce. This section inventories them by layer, with the exhibit identifiers by which the Library (this site's Orders Library) holds them, so that the quarters and functions sections can apply them by quarter and by function. The statutory test they are measured against, section 2301(c)(2)(A)(ii)(I) of the CARES Act, re-enacted as section 3134(c)(2)(A)(ii)(I) of the Internal Revenue Code (the "Suspension Clause"), is read element by element on the statute page.
The universe
The governmental response to COVID-19 was the densest body of governmental commands on commerce, travel and assembly in the nation's history, and every count of it is a floor. By May 31, 2020, according to the Centers for Disease Control and Prevention, forty-two States and territories had issued mandatory stay-at-home orders reaching 2,355 of the nation's 3,233 counties, and "most jurisdictions issued multiple orders."15 The Council of State Governments counted 2,065 executive orders issued by governors and State agencies between February 2020 and June 29, 2020 alone, before four of the six claimable quarters had begun.16 The Department of Health and Human Services' own dataset records 4,218 State and county policy-order entries between March 23, 2020 and August 31, 2021, and its curators stopped coding in the spring of 2021.17 The COVID AMP database catalogued nearly 50,000 policy measures worldwide, including more than 20,000 at the United States national and State level, ninety-five percent of them issued before November 23, 2021, and approximately 8,000 issued by United States counties.18 The Kaiser Family Foundation's State-by-State files record that on July 2, 2021 thirty-five jurisdictions kept emergency declarations in force and that on September 21, 2021 twenty-five did, with statewide face-covering requirements in eleven.19 The Library indexes the instruments The COVID Project has retrieved and graded; that count is a count of what this site has indexed, and it is not, and is not offered as, a count of the orders that reached any employer or of the orders issued nationally, which the sources above place in the tens of thousands.
The federal government's own attribution
The Bureau of Economic Analysis attributed the largest quarterly decline in gross domestic product on record to "'stay-at-home' orders issued in March and April"; the Government Accountability Office wrote that "millions have lost their jobs due to stay-at-home orders and business closures"; the Federal Reserve wrote in May 2020 that "mandated closures of retail establishments remained largely in place" and in December 2020 that "mandated restrictions (recent and prospective)" weighed on activity; the Bureau of Labor Statistics found that nineteen percent of establishments, 1.6 million, "experienced a government-mandated closure" in 2020; the Transportation Security Administration's checkpoint throughput fell from 2,353,150 on March 1, 2020 to 113,147 on April 14, 2020, a decline of 95.2 percent, and the Bureau of Transportation Statistics recorded 557 million fewer airline passengers in 2020 than in 2019.20 The position that few orders existed is not a close call on a contested record; it cannot be squared with the federal government's own datasets.
The federal layer
The run-up (January 31 to March 31, 2020), counted toward the second quarter of 2020
The President suspended the entry of persons who had been in China effective February 2, 2020, in Iran effective March 2, in the Schengen Area effective March 13 and in the United Kingdom and Ireland effective March 16, 2020, under 8 U.S.C. § 1182(f).21 The Secretary of Homeland Security limited land-border travel with Canada and Mexico to "essential travel" from 11:59 p.m. on March 20, 2020, defining non-essential travel by example as "sightseeing, recreation, gambling, or attending cultural events," and renewed the limitation monthly for nineteen months.22 The State Department cancelled every routine visa appointment in the world as of March 20, 2020.23 The Cybersecurity and Infrastructure Security Agency published on March 19, 2020 the first version of its advisory list of essential critical infrastructure workers, which named no rental function, and on March 28, 2020 the second, which named "vehicle rental services" and "the manufacturing, distribution, sales, rental, leasing, repair, and maintenance of vehicles"; the list was "advisory in nature" by its own words, and it acquired force only where a State incorporated it into an order, as Texas, Florida, Georgia and some thirty other States did, while Michigan incorporated the first version alone.24 The Families First Coronavirus Response Act of March 18, 2020 made paid leave mandatory from April 1, 2020 for every employer under 500 employees whose employee was "subject to a Federal, State, or local quarantine or isolation order" or whose child's school or place of care "has been closed," and the Department of Labor's rule defined a quarantine or isolation order to include a stay-at-home order.25
The second quarter of 2020
Every federal layer was at its maximum. The paid-leave mandate became operational April 1, 2020 and ran through December 31, 2020.26 The President suspended the entry of most new immigrants from April 23, 2020, added Brazil to the entry suspensions effective May 26, 2020 and suspended the entry of H-1B, H-2B, L and J workers from June 24, 2020.27 The Department of Homeland Security renewed the land-border limitation on April 22 and May 22, 2020.28 The President delegated Defense Production Act priority and allocation authority over health and medical resources on March 18, 2020 and made meat and poultry processing a priority on April 28, 2020, and the Department of Health and Human Services designated fifteen categories of respirators, masks, gloves, gowns, ventilators and disinfectants as "scarce materials" whose accumulation above reasonable demand became a federal crime.29 The Office of Management and Budget moved the executive branch to maximum telework on March 17, 2020 and kept it there under M-20-23 of April 20, 2020 through June 10, 2021, so that every federal customer of the industry's equipment and event lines operated remotely.30 The Department of Transportation's order of April 7, 2020 fixed the minimum scheduled air service every carrier taking payroll support was required to maintain through September 30, 2020, which fixed the network of flights on which the industry's airport counters depend.31 The Federal Reserve's Beige Book of April 15, 2020 recorded that "[s]ome other manufacturing industries, such as autos, mostly shut down" and that Districts "reported widespread mandatory closures."32
The third and fourth quarters of 2020
The entry proclamations continued; the Department of Homeland Security renewed the land-border limitation on July 22, August 21, September 23, October 22, November 23 and December 22, 2020.33 The Centers for Disease Control and Prevention ordered on September 1, 2020, effective September 4, that a landlord "shall not evict any covered person from any residential property," on pain of criminal fines, and Congress extended the order to January 31, 2021.34 The paid-leave mandate expired December 31, 2020.35 Congress appropriated, on December 27, 2020, "[n]ot less than $200,000,000" for relief from rent and minimum annual guarantees "to on-airport car rental, on-airport parking, and in-terminal airport concessions," relief Congress does not appropriate for rent a tenant can pay, enacted while the entry proclamations, the land-border notices and the traveler quarantines of fifteen jurisdictions were in force.36
The first quarter of 2021
The new Administration continued every restriction and added the transport layer. Proclamation 10143 of January 25, 2021 continued the Schengen, British, Irish and Brazilian entry suspensions without interruption and added South Africa: "The entry into the United States, as immigrants or nonimmigrants, of noncitizens who were physically present within the Schengen Area, the United Kingdom ..., the Republic of Ireland, and the Federative Republic of Brazil during the 14-day period preceding their entry or attempted entry into the United States, is hereby suspended."37 Executive Order 13991 of January 20, 2021 required face coverings and distancing of every person in federal buildings and on federal lands, and Executive Order 13998 of January 21, 2021 directed face coverings "in or on: (i) airports; (ii) commercial aircraft; (iii) trains; (iv) public maritime vessels, including ferries; (v) intercity bus services; and (vi) all forms of public transportation."38 The Centers for Disease Control and Prevention's inbound-testing order took effect January 26, 2021: "This Order prohibits the introduction into the United States of any aircraft passenger departing from any foreign country unless the passenger" has a negative test or documentation of recovery.39 The conveyance and transportation-hub order, an airborne-transmission control on every conveyance and every airport, signed January 29, 2021, took effect at 11:59 p.m. on February 1, 2021 "until further notice," and the Transportation Security Administration's directives of January 31, 2021 required every airport operator, airline, transit agency and bus company to give notice that "Federal law requires wearing a mask," to refuse boarding and to remove violators.40 The Department of Homeland Security renewed the land-border limitation on January 19, February 23 and March 19, 2021.41 The Department of Transportation's order of January 15, 2021 fixed minimum air service through March 31, 2021.42 The Occupational Safety and Health Administration launched its National Emphasis Program on March 12, 2021.43 On March 11, 2021 Congress re-enacted the Suspension Clause for the third and fourth quarters of 2021 and appropriated up to $800,000,000 for relief from airport rent and minimum annual guarantees in the same Act, and the Federal Aviation Administration announced the first allocations of that relief on February 19, 2021.44
The second quarter of 2021
The United States was adding countries to the entry suspensions, not lifting them: Proclamation 10199 suspended entry from India effective May 4, 2021.45 The Department of Homeland Security renewed the land-border limitation on April 22, May 24 and June 23, 2021.46 The Transportation Security Oversight Board ratified the aviation face-covering directives on April 20, 2021, and the Transportation Security Administration extended the surface directive through September 13, 2021 by Security Directive 1582/84-21-01A, effective May 12, 2021 and applied "including those already vaccinated."47 The Department of Transportation's order of April 29, 2021 required every carrier taking payroll support to maintain minimum scheduled service through September 30, 2021, binding from May 14, 2021.48 The Occupational Safety and Health Administration's COVID-19 Healthcare Emergency Temporary Standard took effect June 21, 2021, applying "to all settings where any employee provides healthcare services or healthcare support services," which governed every hospital and home-health agency to which the industry rents home health equipment and every hospital dock to which it delivers.49 The White House's supply-chain review of June 8, 2021 found that the pandemic "created a global semiconductor chip shortage impacting automotive, industrial, and" other sectors and that vehicle plants lost production "due to a six-week industry shutdown."50 The Federal Aviation Administration published its rent-relief information collection on June 11, 2021 and announced the Airport Rescue Grant allocations on June 22, 2021.51
The third quarter of 2021
The federal layer tightened. In force on July 1, 2021 were the conveyance order, with its airborne-transmission control on every airport and shuttle, and Security Directive 1582/84-21-01A with the ratified aviation successors; the inbound-testing order; Proclamations 9984, 9992, 10143 and 10199; the land-border limitation under the June 23 notices, in effect until 11:59 p.m. on July 21, 2021; the Title 42 order; the CDC eviction moratorium to July 31; the Healthcare ETS with compliance dates of July 6 and July 21; Executive Order 13991 and the Office of Management and Budget's reentry memorandum of June 10, 2021, which superseded the twenty-five percent occupancy limit of January 24, 2021 and carried the face-covering, distancing and visitor rules into agency reentry plans due July 19, 2021; the Department of Transportation's minimum-service order to September 30; and the Defense Production Act delegations.52 Inside the quarter: the Occupational Safety and Health Administration revised its National Emphasis Program on July 7, 2021; the Department of Homeland Security renewed the land-border limitation on July 22, August 23 and September 22, 2021; the Safer Federal Workforce Task Force reinstated face coverings in every federal building for all persons regardless of vaccination status in areas of substantial or high transmission on July 27-29, 2021, required that "employees and onsite contractors must sign an attestation confirming their vaccination status," that "[v]isitors must provide information on their vaccination status" and that any federally hosted "in-person meeting, conference, or event that will be attended by more than 50 participants" first obtain agency-head approval, and issued the Certification of Vaccination form in August; the Centers for Disease Control and Prevention replaced the Title 42 order without interruption on August 2, 2021 and ordered a new eviction moratorium for counties of substantial or high transmission from August 3 until it was vacated on August 26, 2021; the Transportation Security Administration issued Security Directive 1582/84-21-01B on August 20, 2021, effective September 14, 2021 through January 18, 2022; the President signed Executive Orders 14042 and 14043 on September 9, 2021, reciting that the public health emergency and the national emergency remained in effect; and the Office of Management and Budget published its determination on September 28, 2021 that contractor compliance "will improve economy and efficiency by reducing absenteeism and decreasing labor costs for contractors and subcontractors."53 On September 30, 2021 every one of those instruments other than the eviction orders that expired July 31 and August 26, the Title 42 text replaced August 2 and the surface directive replaced September 14 remained in force, and the Department of Transportation's minimum-service order expired at the end of that day.54 The revocation of the entry proclamations and the opening of the land borders to vaccinated travelers came only on November 8, 2021.55 A Government that was tightening its own workplace rules, renewing its border prohibitions, replacing its Title 42 order and extending its eviction moratoria in July, August and September 2021 cannot maintain that no orders limiting commerce, travel or group meetings were in effect in that quarter; the position cannot be squared with the Federal Register.
The fifty States
Every State and the District of Columbia issued orders that reached this industry's functions in the second quarter of 2020, and in every one of the fifty-one jurisdictions orders reaching those functions were in force on every day of the third quarter of 2021: the federal conveyance, entry, land-border and minimum-service orders in all of them, and the State, local, school, quarantine and sector instruments the fifty-State table on this page lists jurisdiction by jurisdiction. The regime differed by State in four dimensions that matter to this industry, and the table tabulates all fifty-one jurisdictions across them: whether construction was shut down or only conditioned (EQ); when gatherings were prohibited or capped and when the caps ended (PR); when non-essential retail closed, went curbside and reopened at what percentage (CN, YD); and whether the State confined travel and quarantined arrivals (CR). The narrative below states the patterns by region, the lead instruments, the winter re-tightening, the dates general restrictions ended and the preemption States; each State's own page carries its full chronology.
The Northeast: the construction shutdowns and the longest regimes
The Northeast is where the equipment renter's customers were ordered off the job. New York's Executive Order 202.13 (March 29, 2020) narrowed the construction exemption "as of March 28, 2020" to projects Empire State Development had determined essential and subjected every other project to the 100 percent in-person workforce reduction of Executive Order 202.8 until the Phase One restart of May 15, 2020, which came only under the mandatory Interim Guidance for Construction (six-foot distancing, face coverings, fifty percent vehicle occupancy, screening) that ran to June 25, 2021.56 New Jersey's Executive Order 122 ceased "all non-essential construction projects" at 8:00 p.m. on April 10, 2020, confined essential construction to visitor bans, ten-person meeting caps, staggered shifts, face coverings and gloves, and released the rest at 6:00 a.m. on May 18, 2020 under Executive Order 142's mandatory protocols; Executive Order 192 placed every job site under its worksite standards from November 5, 2020, and those standards ran for unvaccinated and unverified employees through the third quarter of 2021 under Executive Orders 242 and 243.57 Pennsylvania's list of March 19, 2020 marked residential, heavy and civil and specialty trade construction "No" while marking all four NAICS 532 groups "Yes," so that the rental yard could open in a Commonwealth in which "most construction projects" were ordered to cease until the May 1, 2020 restart under the mandatory construction guidance; the Worker Safety Order of April 15, 2020 and the mitigation orders' workplace rules ran to May 31, 2021.58 Vermont's Addendum 6 suspended non-critical construction at 5:00 p.m. on March 25, 2020 and Addenda 10, 11 and 12 let it back in crews of two (April 20), five (April 27) and ten (May 4), with full operations only from May 11, 2020 under training, screening and health-officer requirements.59 Boston halted construction on March 16, 2020, required a compliance affidavit of every operating site from April 27 and restarted in phases from May 5 to May 26, 2020, while the Commonwealth called construction essential.60 For the event renter the region's gathering bans were total and long: New York cancelled gatherings "of any size for any reason" on March 23, 2020, capped them at ten from May 22, cancelled them again in cluster zones from October 2020 with a $15,000-a-day penalty for organizers, capped residential gatherings at ten on November 13, 2020, and ended its limits only on June 15, 2021; New Jersey cancelled all gatherings on March 21, 2020, cut indoor gatherings to ten on November 17, 2020 and removed its indoor limits on June 4, 2021; Pennsylvania prohibited gatherings under its stay-at-home orders from March 23, 2020, capped them at twenty-five (yellow) and 250 (green), cut indoor events to ten percent of occupancy on November 27 and to ten persons from December 12, 2020 to January 4, 2021, and ended its limits on May 31, 2021; Massachusetts ran caps of ten (March 24, 2020), twenty-five and fifty, ten and twenty-five again from December 26, 2020, and ended them May 29, 2021; Connecticut prohibited social and recreational gatherings of six or more people from March 26, 2020 (Executive Order No. 7N) and repealed its caps on May 20, 2021; Rhode Island capped gatherings at five on March 28, 2020, confined them to a single household in the winter and lifted its caps on May 21, 2021; Vermont suspended all multi-household social gatherings on November 14, 2020 and lifted its limits on June 14, 2021; Maine prohibited gatherings over ten, "faith-based events" named, on March 18, 2020 and lifted its caps on May 24, 2021; New Hampshire prohibited gatherings over ten from March 23 to June 16, 2020 and required face coverings, an airborne-transmission control placed on the gathering itself, at scheduled gatherings of 100 or more from August 11, 2020 to April 16, 2021.61 For the showroom and the counter the region closed non-essential retail to the public from March 22 (New York, by 100 percent workforce reduction), March 21 (New Jersey), March 19 and 23 (Pennsylvania), March 24 (Massachusetts), March 23 (Connecticut), March 25 (Maine and Vermont), March 27 (New Hampshire) and March 30, 2020 (Rhode Island), reopened it in May and June 2020 at fifty percent or by square footage, cut it again in the winter (Massachusetts to twenty-five percent on December 26, 2020; Pennsylvania to fifty percent from December 12), and removed the caps between April 16 and June 15, 2021.62 For the vehicle renter the region ran the tri-State traveler quarantine from June 25, 2020 (New York's Executive Order 205, with a civil penalty up to $10,000; Connecticut's Executive Order 7III made it mandatory July 24, 2020 with a $1,000 penalty), Massachusetts's Order No. 45 from August 1, 2020 to March 22, 2021 (every arrival "by any means or mode must quarantine for 14 days" absent a negative test, at $500 a day), Rhode Island's quarantine on every non-work arrival from March 28 to September 2020 and on hot-spot and international arrivals to July 6, 2021, Vermont's from March 30, 2020 to June 14, 2021, Maine's from April 3, 2020 to May 1, 2021 (Executive Order 57 expiring June 30, 2021), Pennsylvania's test-or-quarantine from November 20, 2020 to March 1, 2021 and New Hampshire's mandate from November 15, 2020 to May 7, 2021.63 The motor-vehicle offices closed in every State of the region in March 2020: New York cancelled every DMV appointment at 8:00 p.m. on March 20, 2020 and kept county offices appointment-only until May 17, 2021; New Jersey's agencies, road-testing and inspection facilities closed to the public from March 16 to July 7, 2020; Pennsylvania's driver license and photo centers closed from March 16, 2020; Connecticut's Executive Order 7C extended every credential and registration deadline ninety days; Vermont suspended in-person DMV transactions by Gubernatorial Directive 3 of March 18, 2020; Rhode Island issued seven expiration-extension orders between March 17 and August 2020.64
The South: essential yards, conditioned sites, closed showrooms and the preemption States
No Southern State closed construction, and every one conditioned it. Delaware's Fourth Modification named construction workers essential subject to six feet "at all times," exclusion of workers over sixty, sick or quarantined, no visitors, "Teleworking must be maximized" and an "immediate closure" sanction, and it closed every non-essential retail location on March 24, 2020 with a proviso permitting closed businesses only "to complete any sales or rentals in progress prior to this Modification."65 Maryland's Governor delegated to county health officers the power to close any construction site as an "Unsafe Facility" from April 5, 2020 to May 15, 2021, closed non-essential retail to the public at 5:00 p.m. on March 23, 2020, confined all travel to essential activities and work from March 30 to May 15, 2020 under its stay-at-home order, prohibited convention events "until further notice" on June 12, 2020, and lifted its caps on March 12, 2021.66 Virginia's Executive Order 55 confined residents to enumerated purposes from March 30 to June 10, 2020, its Executive Order 53 limited all non-essential retail to ten patrons ("If any such business cannot adhere to the 10 patron limit with proper social distancing requirements, it must close"), its Department of Labor and Industry's emergency temporary standard of July 27, 2020 and permanent standard of January 27, 2021 bound every employer in the Commonwealth through the third quarter of 2021, and its gathering caps ran from March 24, 2020 ("including parties, celebrations, religious, or other social events") to May 28, 2021.67 Kentucky closed non-life-sustaining retail at 8:00 p.m. on March 23, 2020 by NAICS list (showrooms, clothing, furniture, sporting goods, florists and jewelry named), prohibited all mass gatherings on March 19, 2020, instructed residents "not to travel into any other state" on March 30, 2020 with a fourteen-day quarantine on return, and rescinded its orders on June 11, 2021.68 Louisiana reduced all non-CISA retail to minimum public contact on March 23, 2020, ran gathering caps of 250, 50 and 10 from March 13 to 23, 2020 and a chain of caps to May 26, 2021, and from August 4 to October 27, 2021 reimposed statewide an indoor face-covering requirement in every business and workplace open to the public, one of the exposure-control conditions the State placed on the business itself, enforced by citations to businesses that fail to enforce it.69 The District of Columbia closed non-essential retail at 10:00 p.m. on March 25, 2020, prohibited gatherings over ten from March 25 to June 21, 2020, quarantined arrivals from July 27, 2020 to May 21, 2021, kept its DMV service centers appointment-only from June 23, 2020 to July 19-20, 2021, and reimposed universal indoor face coverings on July 31, 2021, an airborne-transmission control on every indoor business in the District.70 Texas closed non-essential in-store retail on April 2, 2020 by incorporating the CISA list, reopened it at twenty-five percent on May 1, capped outdoor gatherings by mayoral or county-judge approval until March 10, 2021, quarantined air travelers from the tri-State area, New Orleans, California, Washington and elsewhere and road travelers from Louisiana with Department of Public Safety checkpoints from March 28 to May 21, 2020, waived vehicle title and registration requirements from March 16, 2020 to April 14, 2021 because its county tax offices were closed or by appointment, and preempted local orders from April 2, 2020.71 Florida closed non-essential retail in Miami-Dade, Broward, Palm Beach and Monroe Counties on March 30, 2020 and statewide from April 3 to May 4, 2020, isolated arriving air travelers from the tri-State area and road travelers from Louisiana with Interstate checkpoints from March 23 to August 5, 2020, barred local orders preventing business operation on September 25, 2020, suspended remaining local orders on May 3, 2021, and barred vaccination-documentation conditions by statute from July 1, 2021.72 Georgia confined non-critical retail to minimum basic operations from April 3 to 30, 2020, required retail from May 1, 2020 to limit patrons to fifty percent of fire capacity, capped gatherings at ten within six feet from March 24, 2020 and at fifty from June 16, 2020 to April 7, 2021, banned vacation rentals from April 9 to 30, 2020 to keep the State from "becoming a vacation destination for out-of-state individuals," and on August 19, 2021 suspended inconsistent local orders and barred compelled business enforcement of local face-covering rules.73 South Carolina closed furniture, clothing, jewelry, department, sporting-goods and other stores at 5:00 p.m. on April 6, 2020, capped open retail at five customers per 1,000 square feet or twenty percent on April 7, quarantined every person entering from New York, New Jersey, Connecticut or New Orleans from March 27 to May 1, 2020, and banned lodging bookings from April 3 to May 1, 2020.74 Tennessee closed non-essential retail to the public from March 31 to April 28, 2020, prohibited gatherings of ten or more from March 23 to May 22, 2020, and extended driver licenses by Executive Order No. 15 of March 19, 2020; North Carolina permitted only essential retail from March 30 to May 8, 2020, prohibited gatherings over ten from March 30, 2020 with caps to May 14, 2021, and extended every motor-vehicle credential and dealer plate by statute; Mississippi closed non-essential retail from April 3 to 17, 2020 and confined travel to essential purposes to June 1, 2020; Oklahoma closed non-essential retail from March 25 and April 1 to April 24, 2020 and quarantined air arrivals from substantial-spread areas from March 29 to May 12, 2020; Arkansas quarantined arrivals from the tri-State area and New Orleans to June 15, 2020 and required face coverings of every customer, one of the exposure-control conditions the State placed on every open business, from July 20, 2020 to March 31, 2021; Alabama closed furniture, clothing and other stores on March 28, 2020, named "vehicle rental and taxi services" essential in its Stay at Home Order of April 3, 2020, and converted its rules to recommendations on April 9, 2021; West Virginia ceased non-essential retail at 8:00 p.m. on March 24, 2020, isolated arrivals "from areas with substantial community spread" from March 31 to May 21, 2020 with State Police monitoring, and terminated its caps on April 20, 2021.75 Six Southern States preempted local orders by clause (Arkansas, Florida, Georgia, South Carolina, Tennessee in eighty-nine counties, Texas), and each preemption clause is itself a gubernatorial order fixing what commerce in the localities could do; the 2021 legislative layer (Texas Senate Bill 968 and GA-38; Florida chapter 2021-8; South Carolina's provisos; Tennessee Public Chapter 550; Arkansas Act 1002) is a second set of governmental instruments regulating the same businesses.76
The Midwest: Michigan's shutdown, the Illinois model and the winter re-tightening
Michigan closed every construction site not serving critical infrastructure from March 24 to May 7, 2020, closed non-essential retail on March 24, 2020 and prohibited all gatherings outside a household from March 24 to June 1, 2020; its Executive Order 2020-42 adopted only the March 19, 2020 CISA list ("This order does not adopt any subsequent guidance document released by this same agency"), which named no rental function, so that a rental yard could operate only as a supplier "whose continued operation is necessary to enable, support, or facilitate another business's or operation's critical infrastructure work"; construction resumed May 7, 2020 under daily screening and site rules; MIOSHA's emergency rules of October 14, 2020 bound every workplace to June 22, 2021, and MIOSHA cited an equipment rental and sales business for violations of those rules.77 Illinois's Executive Order 2020-10 prohibited "[a]ll travel ... except Essential Travel and Essential Activities" and all gatherings outside a household from March 21, 2020, named "vehicle rental services" among the transportation businesses permitted for Essential Activities, closed non-essential retail except minimum basic operations to April 30, permitted telephone and online orders with pickup outside the store in May, reopened stores at fifty percent on May 29, 2020, prohibited indoor gatherings of more than one household and barred meeting venues from hosting gatherings of any size under Tier 3 from November 20, 2020, ended its limits on June 11, 2021, and on August 30, 2021 reimposed a universal indoor face-covering requirement framed as a workplace exposure-control duty on the employer ("[a]ll employers must ensure that employees wear face coverings in indoor workplaces"); Chicago's Emergency Travel Order quarantined arrivals from listed States from July 6, 2020 into 2021, and the Secretary of State's Driver Services facilities closed from March 17 to May 31, 2020 and again from November 17, 2020 to January 4, 2021.78 Ohio's Stay at Home Order of March 22, 2020 named "vehicle rental services" essential inside an order confining every Ohioan to essential travel, ceased non-essential retail on March 23, prohibited gatherings over ten through April 5, 2021, reopened retail May 12, 2020 under mandatory checklists, and from November 16, 2020 provided that no retailer "shall be open for business or operate unless in compliance" with the facial-covering order, with a twenty-four-hour closure on violation.79 Minnesota confined residents to their homes from March 27 to May 17, 2020, closed non-critical retail to the public with curbside from May 4, reopened at fifty percent of fire-marshal capacity on May 18 under a certified Preparedness Plan enforceable by $25,000 civil penalties, prohibited all social gatherings and receptions from November 20 to December 18, 2020, and lifted its caps on May 27, 2021; its driver-examination stations and license-agent offices closed until May 4, 2020 with "[n]o face-to-face transactions or driver services."80 Kansas confined every resident to home from March 30 to May 3, 2020 under the Kansas Essential Function Framework, closed non-framework retail to in-person operation, ended its statewide business restrictions on May 26, 2020, required from July 3, 2020 to March 31, 2021 that "all businesses or organizations in Kansas must require all employees, customers, visitors, members, or members of the public to wear a mask," and through its Department of Health and Environment quarantined travelers from listed States, countries and cruises and attendees of 500-person gatherings from March 2020 through November 2021.81 Indiana confined residents to essential travel and prohibited gatherings over ten from March 24, 2020, ceased non-essential retail except minimum basic operations and then permitted only online or call-in ordering with curbside pickup from April 7, 2020, closed its Bureau of Motor Vehicles branches on March 24, 2020, and from July 19, 2021 excluded every positive employee from employment and quarantined unvaccinated close contacts for fourteen days by health-department control measures given executive-order status August 1, 2021.82 Iowa closed furniture, clothing, jewelry and other stores at 10:00 p.m. on March 26, 2020 and malls and additional stores on April 7, prohibited gatherings over ten from March 17 to May 27, 2020, reimposed caps of fifteen indoors and thirty outdoors with a statewide face-covering requirement from November 17, 2020, and suspended license, registration and title deadlines from March 17, 2020; Wisconsin's Emergency Order 12 prohibited all gatherings of any number, limited weddings and funerals to fewer than ten and prohibited all travel except Essential Travel from March 25, 2020 until the State Supreme Court ended the statewide regime on May 13, 2020, after which the counties and cities carried the layer; Missouri's Stay Home order ran from April 6 to May 3, 2020 with retail occupancy caps of twenty-five and ten percent to June 15, 2020; Nebraska prohibited weddings, funerals, concerts, festivals and every convening of more than ten in the Omaha-area counties from March 19, 2020 and statewide from April 3, 2020 (Ex. NE-002, Ex. NE-008) and extended every title, registration, driver license and commercial driver license expiring on or after March 1, 2020 because "counties have continued to close local offices"; North Dakota's State Health Officer confined every person entering from another State or country from March 28 to September 21, 2020 and its Canadian ports of entry were closed to non-essential travel to November 8, 2021; South Dakota directed local governments to restrict gatherings of ten or more from March 23 to April 28, 2020 and closed its driver-license exam stations.83 No Midwestern State barred local orders during the claimable quarters, and the county and city orders of Chicago, Detroit, the Twin Cities, Milwaukee, Madison, St. Louis, Kansas City, Columbus, Cleveland, Cincinnati and Indianapolis ran alongside the State's in every quarter.84
The West: the total gathering bans, the stay-at-home confinement and the regimes that ran into the third quarter of 2021
Washington stopped non-essential construction under Proclamation 20-25 from March 25, 2020 and let it restart from April 24, 2020 only under the Phase 1 Construction Restart COVID-19 Job Site Requirements, which the Department of Labor and Industries made enforceable as a violation of the industrial safety act through WAC 296-800-14035 from May 26, 2020, readopted through the third quarter of 2021; it prohibited all gatherings "regardless of the number of people involved," weddings and funerals included, from March 23, 2020, prohibited indoor social gatherings absent quarantine and receptions outright from November 17, 2020, ended its caps on June 30, 2021, and from August 23, 2021 required a face covering of every person indoors and barred every business from admitting an unmasked customer, placing the exposure-control duty on the business itself; the Port of Seattle suspended about twenty construction projects at the airport from April 9 to 13, 2020 pending contractors' safety plans, imposed at Seattle-Tacoma International Airport from May 18, 2020 a face-covering policy, an airborne-transmission control on every tenant, worker and passenger in the terminal, barred evictions of its tenants and deferred their rent from April 1, 2020, and cut airport retail to twenty-five percent on November 17, 2020.85 California's stay-at-home order of March 19, 2020 confined all non-essential movement and prohibited all gatherings until June 15, 2021 through its tiers and Regional Stay at Home Order; the six Bay Area health officers barred non-essential construction from March 31 to May 3, 2020 and permitted it from May 4 only under Small and Large Construction Project Safety Protocols with a designated COVID-19 supervisor on every site; the Cal/OSHA COVID-19 Prevention Emergency Temporary Standard bound every employer in the State from November 30, 2020 and was readopted June 17, 2021; the Department of Motor Vehicles closed its field offices to the public statewide from March 27, 2020 by its own action under the State of Emergency, and Executive Order N-40-20 of March 30, 2020 directed that in-person DMV transactions be limited; the Department reopened twenty-five of them by appointment on May 8 and the rest on June 11, 2020, suspended behind-the-wheel tests to January 11, 2021 and extended commercial driver licenses through November 30, 2021 because its offices could not renew them.86 Hawaii ordered every non-listed business to "cease" and every person to stay at home from March 25, 2020, named "vehicle rental services" essential inside that order, prohibited gatherings over ten to June 30, 2020, quarantined every arriving person from March 26, 2020 through March 25, 2022 (with the pre-test exception from October 15, 2020 and vaccination exceptions from mid-2021), quarantined interisland travel from April 1 to June 15, 2020 and from August 11, 2020 to June 14, 2021, required face coverings of every person statewide, an airborne-transmission control on every indoor business, from November 16, 2020 to March 25, 2022, and on August 10, 2021 capped social gatherings at ten indoors and twenty-five outdoors and restaurants, bars and gyms at fifty percent through November 30, 2021 by its terms (superseded November 12, 2021); Kauai County's Rule 15 prohibited rentals to quarantined persons from August 11, 2020 to April 5, 2021 and made every rental company responsible for compliance.87 Colorado prohibited gatherings over ten from March 19, 2020 and all gatherings outside a residence from March 26 to April 26, 2020, named "Automobile rental" and "vehicle rental services" critical businesses subject to distancing requirements and the duty to reduce in-person work, closed non-critical retail on March 26 and reopened it at fifty percent on May 1, 2020, prohibited personal gatherings and closed field services in Level Red from November 20, 2020 to January 4, 2021, and ended its caps on April 16, 2021 under Public Health Order 20-38, which kept an employer implementation duty through the third quarter of 2021.88 New Mexico closed non-essential retail by 100 percent in-person reduction from March 23, 2020, capped gatherings at five from March 24, 2020, quarantined air arrivals for fourteen days from March 27, 2020 (Executive Order 2020-013) and every arrival by any means from July 1, 2020 to February 10, 2021, closed non-essential and big-box retail again from November 16 to December 1, 2020, ran a county-by-county framework to June 30, 2021, bound every business to its COVID-Safe Practices through September 30, 2021, and reinstated universal indoor face coverings on August 20, 2021 alongside those practices.89 Nevada closed non-essential retail unable to ship or deliver on March 20, 2020, closed the showrooms of essential businesses on April 8, 2020, prohibited gatherings of ten or more from March 24, 2020, closed its DMV offices from March 16, 2020 and reopened them by appointment on June 15, 2020 with credentials extended, cut gatherings to the lesser of fifty or twenty-five percent in its Statewide Pause from November 24, 2020, delegated to counties on May 1, 2021, and reimposed on July 30, 2021 under Directive 047 a universal indoor face-covering requirement, an airborne-transmission control on every indoor business in the counties it named; Oregon closed malls, furniture, jewelry and cosmetic stores on March 24, 2020, prohibited every retailer from operating without a designated distancing officer and "directed" every individual to minimize travel, ran its county tier framework, with its highest tier closing indoor dining and capping gatherings, from December 3, 2020 to June 30, 2021 under Executive Order 20-66, and on August 13, 2021 reimposed a face-covering requirement in every indoor space including every indoor workplace under a rule carrying a $500-a-day penalty, alongside its Oregon OSHA rule OAR 437-001-0744, whose exposure-control requirements bound every employer through the quarter; Alaska closed every business not on its essential list from March 28 to April 24, 2020, ordered all individuals to "cease participation in public or private gatherings ... regardless of the number of people involved," weddings and funerals named, quarantined every arriving resident, worker and visitor from March 25, 2020 to February 14, 2021 with a $25,000 fine, and barred intrastate travel from March 28 to May 12, 2020; Arizona confined residents from March 31 to May 15, 2020, confined non-essential retail to non-in-person activity from March 31 to May 3, quarantined air arrivals from the tri-State area from April 9 to May 15, 2020 as a class 1 misdemeanor, barred organized events over fifty without local approval from June 29, 2020 to March 25, 2021, and made its Motor Vehicle Division appointment-only from March 23, 2020 with expirations deferred; Idaho prohibited all gatherings "regardless of the number of people involved" and all travel except Essential Travel from March 25 to April 30, 2020 and quarantined persons entering the State from April 15 to May 15, 2020; Montana prohibited all gatherings outside a household and confined travel to essential purposes from March 28 to April 26, 2020, named "vehicle rental services" essential, quarantined every non-work arrival from March 30 to June 1, 2020 with National Guard screening at airports, and capped gatherings at twenty-five statewide from November 20, 2020 to January 15, 2021; Utah confined every resident to essential purposes from March 27 to May 1, 2020, required a travel declaration of every adult arriving at Salt Lake City International Airport or by highway from April 10 to May 1, 2020, and barred social gatherings outside the household from November 9 to 23, 2020; Wyoming forbade gatherings of ten or more from March 20 to May 14, 2020 with no worship exemption and quarantined every non-work arrival from April 3 to May 8, 2020.90 In nine western States (Arizona, Colorado, Utah, Nevada, California, Oregon, Washington, New Mexico, Hawaii) the general business restrictions were in force on April 1, 2021, in five (California, Oregon, Washington, New Mexico, Hawaii) on June 30, 2021 or into the third quarter itself, and in Hawaii nothing in the general business regime ended before September 30, 2021.91
The winter re-tightening of 2020-21
Every region re-tightened between October and December 2020 by instruments that reached this industry directly. The event renter's market was prohibited or cut to a household in California (all gatherings prohibited in triggered regions), Colorado (Level Red), Illinois (Tier 3, meeting venues barred from hosting gatherings of any size), Michigan (all indoor non-residential gatherings prohibited November 18, 2020 to January 31, 2021), Minnesota (all social gatherings and receptions prohibited November 20 to December 18, 2020), New Mexico (five), Oregon (six from two households), Washington (indoor social gatherings prohibited absent quarantine; receptions prohibited), Vermont (single household), Rhode Island (single household), New Jersey, New York, Massachusetts, Pennsylvania, Delaware, Kentucky, Virginia and the District (ten).92 The showroom fell to twenty-five percent in California's regional order, Colorado's Red counties, Illinois, Washington and Massachusetts, thirty percent in Michigan, fifty percent in Pennsylvania and Maryland, fifty percent in Texas's eighteen high-hospitalization trauma service areas from October 14, 2020 to March 9, 2021 (Ex. TX-025, Ex. TX-026), and closed in New Mexico from November 16 to December 1, 2020.93 The traveler met new or expanded quarantines in Pennsylvania (November 20, 2020), Maryland (December 17, 2020), Connecticut (December 19, 2020), New Hampshire (November 15, 2020), Vermont (November 10, 2020), Washington (variant countries, December 21, 2020) and New Mexico (every non-exempt arrival, October 29, 2020), and the tri-State list grew to thirty-five States and territories.94 Telework was re-imposed in terms in Pennsylvania ("Unless impossible, all businesses must conduct their operations remotely"), Rhode Island, Vermont, Oregon, Washington, Colorado (offices at ten percent), California and Massachusetts (offices at twenty-five percent).95 On January 1, 2021 every State except Missouri, South Dakota and Kansas (whose county orders carried the layer) was under a statewide instrument at least as restrictive as its June 30, 2020 regime, and Illinois, Michigan and Minnesota were under one more restrictive.96
The 2021 transition
The dates on which general business and gathering restrictions ended ran from May 13, 2020 (Wisconsin, by the State Supreme Court's decision in Palm, Ex. WI-007), May 26, 2020 (Kansas, Ex. KS-023), June 15, 2020 (Missouri, Ex. MO-007) and September 25, 2020 (Florida's bar on local orders preventing business operation) through the winter, spring and summer of 2021: Montana January 15 and February 12 (Ex. MT-020, Ex. MT-021), North Dakota January 18 (Ex. ND-074), Idaho February 2 (Ex. ID-012), Iowa February 7 (Ex. IA-035), Arkansas February 26 and March 31 (Ex. AR-014, Ex. AR-070), South Carolina March 1 and 5 (Ex. SC-032, Ex. SC-033), Mississippi March 3, Texas March 10, Oklahoma March 12, Maryland March 12, Wyoming March 16, Arizona March 25, Wisconsin's face-covering order March 31 (Ex. WI-021), Indiana April 6, Georgia April 8, Alabama April 9, Utah April 10 and May 4 (Ex. UT-040, Ex. UT-043), Colorado April 16, West Virginia April 20, New Hampshire April 16 and May 7, Tennessee April 28 (Ex. TN-032), North Carolina May 14, Connecticut May 20, Rhode Island and Delaware and the District May 21, Maine May 24, Nebraska May 24 (Ex. NE-095), Louisiana May 26, Minnesota May 27, Virginia and New Jersey May 28, Massachusetts May 29, Pennsylvania May 31, Nevada June 1 (Ex. NV-038, Ex. NV-074), Ohio June 2, New Jersey's indoor gatherings June 4, Illinois and Kentucky June 11, Vermont June 14, California and New York June 15, Michigan June 22, Washington and Oregon June 30, New Mexico July 1, Rhode Island's reopening and face-covering orders July 6, 2021, and Hawaii not before December 1, 2021.97 In every State the ending instrument kept named instruments alive, and this analysis relies on those instruments for the third quarter of 2021: the workplace standards of California, Oregon, Virginia, Washington, New Jersey and New Mexico; New York's face-covering rule and HERO Act plans; the emergencies of twenty-five States and the District on September 21, 2021 and the sector orders issued under them; the traveler rules of Hawaii and Kansas; the school face-covering and quarantine orders of the 2021-22 year; and, from July 17, 2021, the Delta-wave reinstatements.98
The preemption States
Where the State preempted local orders (Texas, Georgia, Florida, Arizona, Tennessee's eighty-nine counties, South Carolina, Arkansas, Mississippi as to essential businesses, New Jersey, New York, Connecticut, Massachusetts as to essential-workforce travel), the State instrument alone fixed whether a rental counter could open, and the preemption clause is itself a gubernatorial order limiting the commerce of the localities it addressed.99 Where the State set a floor (California, Colorado, Illinois, Michigan, Minnesota, Nevada, Oregon, Washington, Maryland, Missouri in 2020, Ohio, Pennsylvania, Wisconsin after Palm, Kentucky, Louisiana, Delaware, North Carolina, Oklahoma, Virginia, West Virginia, Maine, New Hampshire, Rhode Island, Vermont and every Midwestern State), county health officers closed construction (the Bay Area), closed showrooms (Dallas and Denton Counties), capped gatherings below the State (Anchorage, Boulder, Dane, King and Los Angeles Counties) and, in the third quarter of 2021, reimposed face-covering and vaccination-proof rules the State had not, so that the equipment yard, the airport counter and the event warehouse in those counties operated under two layers at once.100 In Hawaii every county order required the Governor's approval and became a State-approved instrument, which is the character of Kauai's Rule 15.101
The standing duties
Beneath the emergency orders lay a fourth layer that bound every employer in this industry on every day of the six quarters: the standing statutes that commanded every person to prevent and control communicable disease and every employer to furnish a safe and healthful workplace, the offenses for disobeying health and emergency orders, and the liability shields that protected only the business that complied with governmental standards, guidance and protocols. Each is an order from an appropriate governmental authority: a statute or rule that commands conduct is an order, and a legislature, a health department, a labor department and an occupational-safety agency are each an appropriate governmental authority. The pandemic directives gave each standing duty its content. This subsection states the layer for eight States in which the industry's largest yards, counters and event warehouses sit (Texas, Ohio, Oregon, Washington, Kansas, New York, Florida and Maine); the fifty-one-jurisdiction table is on this site's duties page.102
The first layer is the orders inventoried above: no reopening order let a yard, counter or showroom operate unconditionally, and the measures the Service describes as "beyond the order" were the order's own conditions of operating. Texas: "Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy of the establishment" (Ex. TX-021); "Every person in Texas shall wear a face covering over the nose and mouth when inside a commercial entity" (Ex. TX-022). Ohio: no retailer "shall be open for business or operate unless in compliance with this Order" (Ex. OH-037). Oregon: every retail business not closed outright was prohibited from operating "unless the business designates an employee or officer to establish, implement, and enforce social distancing policies, consistent with guidance from the Oregon Health Authority," and retail businesses that failed to comply "will be closed until they demonstrate compliance" (Ex. OR-007); under the county framework of December 2020 the OHA's sector guidance was "enforceable to the same extent this Executive Order is enforceable" (Ex. OR-035). Washington: "No employer may operate ... unless the employer ... complies with all public health authority orders and directives" (Ex. WA-040). Kansas: businesses "can open if they comply with the following" (Ex. KS-019). New York: reopened businesses "must be operated subject to the guidance promulgated by the Department of Health" (Ex. NY-022). Florida: indoor service "so long as they limit indoor occupancy up to fifty (50) percent" (Ex. FL-027). Maine: "Any business authorized now to be open shall comply with the pertinent COVID-19 Prevention Checklist" (Ex. ME-025).103 Where the same orders said "should" or "encouraged," those clauses are recommendations, compulsory only through the orders' conditions, the shields' conditions and the general duty clause.104
The second layer predates the pandemic and outlasted every order. Texas states the duty on the person: "The state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease" (Health and Safety Code § 81.002, Ex. DUT-TX-001); its control measures and the emergency orders are enforced by misdemeanor, felony, fine and confinement (Ex. DUT-TX-002, Ex. DUT-TX-005, Ex. DUT-TX-006, Ex. DUT-TX-012); and "Each employer shall" provide "a place of employment that is reasonably safe and healthful for employees" (Labor Code § 411.103, Ex. DUT-TX-013).105 Ohio makes violation of any Department of Health pandemic order a crime and forbids the person in charge of any "place of public accommodation, amusement, resort, or trade" to "negligently fail to take reasonable measures to protect the public from exposure to the contagion" (Ex. DUT-OH-004, Ex. DUT-OH-007, Ex. DUT-OH-013).106 Oregon gives every emergency order "the full force and effect of law" and commands that "Every employer shall furnish employment and a place of employment which are safe and healthful," enforced through 159 citations by June 2, 2021 (Ex. DUT-OR-004, Ex. DUT-OR-005, Ex. OR-032, Ex. OR-041, Ex. DUT-OR-014).107 Washington commands that "Members of the general public shall cooperate with ... Implementation of infection control measures" and made every proclaimed operating condition a rule of its industrial safety act (Ex. DUT-WA-007, Ex. DUT-WA-010, Ex. AGY-ST-LABOR-WORKPLACE-078).108 Kansas punished knowing violation of an emergency order as a class A misdemeanor and later by civil penalty (Ex. DUT-KS-011, Ex. DUT-KS-006, Ex. DUT-KS-013).109 New York penalizes every violation of "any lawful notice, order or regulation" and commands "reasonable and adequate protection to the lives, health and safety of all persons employed" (Ex. DUT-NY-001, Ex. DUT-NY-002, Ex. DUT-NY-013, Ex. DUT-NY-014).110 Florida makes violation of any emergency requirement or order a misdemeanor its officers "shall enforce" (Ex. DUT-FL-001, Ex. DUT-FL-008, Ex. DUT-FL-007), and Maine makes failure to comply with an enforcement order a Class E crime (Ex. DUT-ME-004), recited in the Governor's orders (Ex. ME-011, Ex. ME-046) and incorporated by reference in Executive Order 55 (Ex. ME-025), while the Department's own orders drew their force and their § 804(2) fines from the enabling chapter, 22 M.R.S. §§ 801-825 (Ex. DUT-ME-001).111 The federal duty ran beneath all eight, and alone in Florida and Maine: "Each employer ... shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees" (29 U.S.C. § 654(a)(1), Ex. DUT-FED-001). OSHA told every employer in March 2020 that the clause "requires employers to provide their employees with a workplace free from recognized hazards" and cited employers under it from September 10, 2020 (Ex. FED-088, Ex. AGY-FED-LABOR-IMMIGRATION-020, Ex. LAW-487, Ex. LAW-488, Ex. DUT-FED-067).112
The third layer is the legislatures' own statement of the standard of care. Texas protects a business unless the claimant proves it "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease," for every action commenced on or after March 13, 2020 (Ex. DUT-TX-014, Ex. DUT-TX-015); Kansas immunizes a business only "if such person was acting pursuant to and in substantial compliance with public health directives" (Ex. DUT-KS-015, Ex. DUT-KS-014); Florida only a defendant that "made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance" (Ex. DUT-FL-012).113 Ohio set a culpability floor without a compliance clause and left its statutes in full force (Ex. DUT-OH-020); Oregon shielded schools alone, on a compliance condition (Ex. DUT-OR-008); New York shielded health care alone and repealed that shield on April 6, 2021 (Ex. DUT-NY-016, Ex. DUT-NY-018); Washington and Maine enacted none, leaving breach of a statutory duty as evidence of negligence (Ex. DUT-WA-013).114 In each State the complying business stood inside the law and the other outside it.
The largest metros
The forty largest metropolitan areas, where the industry's largest yards, airport counters and event warehouses sit, added a local layer of orders with the force of law that in most metros preceded the State's, in many exceeded it, and in twenty-three of the forty reinstated universal indoor face-covering requirements, vaccination-proof conditions or event limits between July 17 and September 30, 2021, while eight more imposed face-covering and screening conditions on entry to their courthouses and government buildings. The metro table on this page tabulates them; the instruments that reached this industry most directly are these.
The shutdowns and confinements of March and April 2020
The six Bay Area health officers ordered every resident to shelter in place from 12:01 a.m. on March 17, 2020 and, on March 31, 2020, barred non-essential construction until May 4, 2020, when they permitted it only under written safety protocols with a designated COVID-19 supervisor on every site.115 Boston halted construction on March 16, 2020.116 New York City declared its emergency on March 12, 2020 and never let it lapse, issuing more than 250 numbered emergency orders in eighteen months.117 Los Angeles County's Safer at Home order of March 21, 2020 and the City's orders confined the county; the Los Angeles Department of Building and Safety conditioned every construction site from March 31, 2020.118 Dallas County confined residents from March 23, 2020 and re-issued its Stay Home Stay Safe and Safer at Home orders weekly through May 15, 2020; Denton County ordered on March 31, 2020 that "[a]utomobile dealerships may continue online sales; showrooms must remain closed."119 Harris County's Stay Home, Work Safe Order ran from March 24, 2020; Miami-Dade closed non-essential retail and confined gatherings from March 16 and 17, 2020; Philadelphia closed every non-essential place of business at 5:00 p.m. on March 16, 2020; Atlanta confined residents from March 24, 2020; St. Louis from March 23, 2020; New Orleans from March 20, 2020, three days before the State; Chicago's Department of Public Health issued its first order March 18, 2020, prohibited gatherings over ten on March 26, and on May 8, 2020 compelled every short-term-rental platform to report every reservation twice weekly and to make every renter acknowledge the stay-at-home order; Minneapolis converted the Governor's closure order into a City regulation enforced by City police on March 16, 2020; San Diego County's Health Officer prohibited every gathering of 250 or more on March 13, 2020 and kept the San Diego Convention Center as an emergency shelter through the spring; Denver's Department of Public Health and Environment closed the Colorado Convention Center, Red Rocks, the Coliseum and the Performing Arts Complex "to the public for any purpose" on March 13, 2020 and cancelled every City-permitted outdoor gathering of 250 or more; Orlando closed every City-owned venue to public events, barred any group-meeting rental of a City building and revoked every event permit on March 20, 2020; Louisville's Metro Parks cancelled every facility and shelter rental from March 14, 2020; Cincinnati's Joint Emergency Order 8 ordered "all bike sharing and electric scooter services and rental businesses ... closed for the duration of the declared emergency" on April 1, 2020, an order on a rental business by name; and Riverside County's Health Officer confined every hotel, motel, timeshare and rental of sixty days or less to COVID-19 uses and forbade any owner or agent to market them from April 2, 2020.120
The traveler and the airport
Chicago's Emergency Travel Order quarantined every arrival from listed States from July 6, 2020 into 2021; Kauai County's Rule 15 made every rental car company the enforcement point of Hawaii's quarantine from August 11, 2020 to April 5, 2021; Honolulu's Emergency Orders ran from March 23, 2020 through the third quarter of 2021, with Emergency Order 2021-09 (effective July 8, 2021), the Safe Access Oahu order (Emergency Order 2021-11, effective September 13, 2021) and Emergency Order 2021-13 (effective September 22, 2021); the Port of Seattle imposed its face-covering policy at the airport from May 18, 2020 and the Greater Orlando Aviation Authority required all 22,000 badged airport employees to wear facial coverings from June 17, 2020, each an airborne-transmission control on the terminal in which the rental counters sit; and the Eighth Judicial District Court in Las Vegas designated meeting rooms of the Las Vegas Convention Center as a temporary courtroom on July 8, 2020 because the State's gathering cap of fifty forbade a trial with more participants in its own building.121
The third quarter of 2021 in the metros
The local instruments of this quarter were, in the main, workplace infection-prevention and exposure-control requirements imposed on every indoor business and public building: universal indoor face-covering orders, several of which placed the duty of enforcement on the business itself, face-covering and screening conditions on entry to courthouses and government buildings, and vaccination-proof conditions on venues. Los Angeles County reinstated masks "regardless of vaccination status" in "all indoor public settings and businesses" from 11:59 p.m. on July 17, 2021, and the City of Los Angeles did the same by its Safer L.A. order; the seven Bay Area health officers and Berkeley ordered every person, "regardless of vaccination status, to wear face coverings when indoors in public settings" from 12:01 a.m. on August 3, 2021 and made businesses "required to implement the indoor face covering order"; San Francisco required proof of vaccination for patrons of indoor restaurants, bars, gyms and entertainment venues from August 20, 2021 and of their personnel by October 13, 2021, restated September 1 and September 15, 2021; Sacramento County required masks indoors in workplaces and public settings from July 30, 2021; Clark County ordered, on July 20, 2021, every employee of every business in an indoor public space masked from 12:00 a.m. July 22, 2021 under a code provision carrying license suspension and $1,000-a-day penalties, and the Eighth Judicial District Court reinstated masks in every court facility from July 19; King County's Local Health Officer ordered masks in every indoor public space and at every outdoor event of 500 or more from September 7, 2021 and announced on September 16, 2021 a vaccination-verification condition on indoor restaurants, bars, gyms, theaters, arenas, exhibition halls and convention centers and outdoor events of 500 or more to take effect October 25, 2021; Denver ordered the personnel of the City, hospitals, care facilities, schools, shelters and their contractors vaccinated by September 30, 2021 (Ex. MET-DEN-023), and Boulder County Public Health required masks of every person aged two and older, regardless of vaccination status, in every indoor public space from 5:00 p.m. on September 3, 2021 (Public Health Order 2021-08, Sept. 2, 2021) (Ex. MET-DEN-033); the Village of Oak Park's Public Health Director ordered masks indoors from August 6, 2021 (Ex. MET-CHI-049), and Chicago's Commissioner of Health did so by Public Health Order No. 2021-1 from August 20, 2021 (Ex. MET-CHI-026); Dallas County ordered universal indoor masking of every commercial entity, school, child-care center and college from 11:59 p.m. on August 11, 2021, "continuing until rescinded," and Bexar County's Executive Order NW-21 did the same in San Antonio from August 11; Harris County kept its screening and mask orders for county buildings and its courthouse orders from August 11 and 17; Philadelphia required masks in every indoor business that did not verify vaccination from August 12, 2021 (Ex. MET-PHL-019), and its Board of Health, adopting the requirement as a regulation on August 13, 2021, defined "indoor" to include a space under "a tent top" (Ex. MET-PHL-020); Boston's Public Health Commission ordered face coverings indoors in every business from 8:00 a.m. on August 27, 2021, "until rescinded"; New York City's Key to NYC order conditioned entry to every indoor restaurant, bar, food court, catering hall, gym, theater, concert venue, museum, arena, stadium, convention center, exhibition hall, bowling alley, arcade and commercial event venue in the five boroughs on proof of vaccination from August 17, 2021, with fines of $1,000, $2,000 and $5,000 from September 13, 2021; New Orleans required a face covering of every person indoors from July 31, 2021 under the Health Department's mandatory COVID-19 Reopening Guidelines issued under the Mayor's emergency proclamation of May 15, 2020 (Ex. MET-MSY-027), and required proof of vaccination or a negative test for entry to every indoor restaurant, bar, gym and venue from August 16, 2021; Baltimore City reinstated indoor face coverings on August 10, 2021; Montgomery County, Maryland's Board of Health required masks indoors from August 7, 2021; Atlanta required masks in every public place from July 28, 2021 (Ex. MET-ATL-063) until the Governor's order of August 19, 2021 barred enforcement against private businesses (Ex. GA-043), and Savannah's Emergency Order No. 29 of August 24, 2021 (effective 6:00 p.m.) required face coverings, capped gatherings on City property at fifty, closed City buildings and community centers, cancelled Civic Center events and revoked event permits through September 23, 2021 (Ex. MET-ATL-017); Mecklenburg County's Board of Health ordered every business in Charlotte and its towns to require face coverings from August 31, 2021 on pain of misdemeanor and closure; the City of St. Louis ordered masks of every person indoors from July 26, 2021; Kansas City's Ordinance 210694 required masks indoors from August 19, 2021; Columbus's Ordinance 2388-2021 required face coverings in "every place of business" from September 14, 2021; Cuyahoga County required face coverings, distancing and screening in every County building from August 3, 2021 (Ex. MET-CLE-009), and the Hamilton County courts' joint order of August 11, 2021 (Ex. MET-CIN-007) and the Marion Circuit Court's order of August 16, 2021 (Ex. MET-IND-054) required face coverings in every courthouse in Cincinnati and Indianapolis; Louisville required masks in every Metro building and vehicle from August 2, 2021; Memphis extended its emergency weekly from July 13, 2021; Dane County ordered every person masked "[i]n any enclosed space open to the public" from August 19, 2021; Salt Lake City required masks of every employee and visitor in City buildings and vehicles regardless of vaccination status from July 28, 2021 (Ex. MET-SLC-029); the Maricopa County Superior Court required a face covering of every person entering any court facility from August 9, 2021; the Fifth Judicial District in Pittsburgh required masks in every courthouse from August 10, 2021; Minneapolis extended its emergency through November 7, 2021; Orange County, Florida, declared its emergency on July 28, 2021 and renewed it weekly through October 20; Hillsborough County extended its local emergency weekly from July 1, 2021; Oakland County ordered masks in every school and day care from August 24, 2021; and Honolulu ran under Tier 5 from July 8, imposed Safe Access Oahu from September 13 and its Safe Oahu Response Plan from September 22, 2021.122 The universal orders bound the equipment yard, the rental counter, the event warehouse and the showroom in the metro as a workplace and a place of public accommodation, as airborne-transmission controls on every worker and customer inside; the courthouse and government-building orders governed the offices through which the industry's title, lien, licensing and court transactions ran; the emergency continuations are the predicate under which each local authority acted; and the vaccination-proof orders on venues bound every indoor event the event renter served.
The sector regulators
Five classes of regulator whose instruments reach this industry's transactions directly issued orders in every quarter: the State motor-vehicle agencies, the airport and port authorities, the Department of Transportation and the Federal Aviation Administration, the State occupational-safety agencies and the convention authorities and venue owners. Their instruments are conditions on the revenue functions, not background.
The motor-vehicle agencies
Every fleet vehicle the industry rents is titled, registered and plated through a State motor-vehicle agency, and every vehicle it sells out of the fleet requires a title transaction at the same agency; every commercial driver it hires holds a credential the agency issues and renews. In March 2020 the motor-vehicle offices closed to the public in nearly every State: California's field offices closed statewide from March 27, 2020 by the Department's own action under the State of Emergency, with Executive Order N-40-20 of March 30, 2020 directing that in-person transactions be limited, and reopened by appointment from May 8 and June 11, 2020, with behind-the-wheel tests suspended to January 11, 2021 and commercial credentials extended through November 30, 2021; New Jersey's agencies, road-testing and inspection facilities closed from March 16 to July 7, 2020; Illinois's Driver Services facilities closed from March 17 to May 31, 2020 and from November 17, 2020 to January 4, 2021; Indiana's branches closed from March 24, 2020; Wisconsin's service centers closed March 20 and went appointment-only from March 23, 2020; Minnesota's exam stations and license-agent offices closed until May 4, 2020; Nevada's offices closed from March 16 to June 15, 2020; New York cancelled every appointment at 8:00 p.m. on March 20, 2020 and kept county offices appointment-only to May 17, 2021; Pennsylvania's centers closed from March 16, 2020; Nebraska's Governor extended every title, registration and license because "counties have continued to close local offices"; North Carolina extended every credential and dealer plate by statute; Tennessee, Kentucky, Maryland, Connecticut, Rhode Island, Vermont, Iowa, Kansas, Colorado, Utah, Montana, North Dakota and South Dakota extended credentials and registrations by order; Texas waived title and registration requirements from March 16, 2020 to April 14, 2021; Oregon's DMV ran appointment-only through the third quarter of 2021 and the District's to July 19-20, 2021; and remote notarization was authorized by order or statute in New York, New Jersey, Massachusetts, Michigan, Maryland, Vermont, Mississippi, Texas and Illinois.123 The American Association of Motor Vehicle Administrators' tables of April 30 and May 12, 2020 record the jurisdiction-by-jurisdiction closures and extensions.124 Where the record of a closure is the agency's own announcement, this analysis cites the announcement as the record of the closure the agency imposed under the governor's emergency order and cites that order; the closures themselves are the facts, and the orders under which they were imposed are the instruments.
The airport and port authorities
The airport authority is a governmental authority with power over the rental counters, shuttles and access roads on its property. The Port of Seattle suspended about twenty construction projects at the airport from April 9 to 13, 2020 pending contractors' safety plans, barred evictions of its tenants and deferred rent and fees from April 1, 2020, imposed a face-covering policy at the airport from May 18, 2020 and cut airport retail to twenty-five percent on November 17, 2020; the Greater Orlando Aviation Authority required facial coverings of all 22,000 badged airport employees from June 17, 2020, each policy an airborne-transmission control on the terminal in which the rental counter sits.125 Congress appropriated in December 2020 and March 2021 relief from the rent and minimum annual guarantees the on-airport car rental counter owed, relief it does not appropriate for obligations a tenant can meet, and the Federal Aviation Administration administered the relief through its rent-relief grants at every primary airport.126
The Department of Transportation and the Federal Aviation Administration
The Department of Transportation fixed by order the minimum scheduled air service every carrier taking payroll support was required to maintain from April 7 through September 30, 2020, from January 15 through March 31, 2021 and from May 14 through September 30, 2021; the network the traveler flew on was a network the federal government fixed by order on every day of the period, and the airport counter operated inside it.127 The Federal Aviation Administration waived slot-usage requirements from March 16, 2020 through the period, recording that the carriers were not flying their schedules.128
The State occupational-safety agencies
The Cal/OSHA COVID-19 Prevention Emergency Temporary Standard bound every employer in California from November 30, 2020 and was readopted June 17, 2021; Virginia's 16VAC25-220 bound every employer in the Commonwealth from July 27, 2020 (emergency) and January 27, 2021 (permanent) and was amended September 8, 2021; Oregon OSHA's OAR 437-001-0744 bound every employer from November 16, 2020 (temporary) and May 4, 2021 (permanent) and renewed its workplace face-covering requirements August 13, 2021; Washington's WAC 296-800-14035 made every condition of the Governor's proclamations a violation of the industrial safety act from May 26, 2020 and was readopted July 6, August 23 and September 20, 2021; MIOSHA's emergency rules bound every Michigan workplace from October 14, 2020 to June 22, 2021 and were enforced against an equipment rental and sales business; New Jersey's Executive Order 192 bound every worksite from November 5, 2020 and its requirements for unvaccinated or unverified employees continued through the third quarter of 2021; New Mexico's COVID-Safe Practices bound every business to September 30, 2021; New York's HERO Act required every private employer to adopt an airborne infectious disease exposure prevention plan by August 5, 2021 and the Commissioner of Health activated every plan on September 6, 2021.129 Each standard was a workplace infection-prevention and exposure-control regime: it required written plans, screening, distancing, face coverings, exclusion of exposed employees and reporting of every yard, counter, shop and delivery crew in the State.
The convention authorities and venue owners
The Javits Center in New York held no events after March 10, 2020, became a medical station from March 30, 2020 and a vaccination center from January 13, 2021; the Boston Convention and Exhibition Center became a field hospital in April 2020 and held its first public convention on September 3, 2021; McCormick Place in Chicago reopened only in July 2021; the San Diego Convention Center was an emergency shelter through the spring of 2020; the Colorado Convention Center was closed by order on March 13, 2020; the Las Vegas Convention Center housed a courtroom in July 2020.130 Each is a venue the event renter serves, removed from the market by a governmental authority's action, and each reopening date fixes when the market for staging, seating and tenting at that venue could return.
The CISA lists and the essential designations
The Cybersecurity and Infrastructure Security Agency's advisory list, from its second version of March 28, 2020, named "vehicle rental services" and "the manufacturing, distribution, sales, rental, leasing, repair, and maintenance of vehicles"; some thirty States incorporated a version of the list into their closure orders, and Illinois, Ohio, Hawaii, Montana, Colorado, Alabama and New Hampshire wrote their own rental clauses.131 Michigan incorporated the first version alone, which named no rental function.132 Pennsylvania's list marked all four NAICS 532 groups "Yes" while marking construction "No"; New Jersey's and New York's lists named no rental business; Rhode Island's list treated dealerships as non-critical "except for auto repair and by appointment only"; Delaware's order permitted closed businesses "to complete any sales or rentals in progress."133 The designation, where given, was the premise of the conditions the order imposed on the counter, the shuttle and the yard, never an exemption from them, and where it was withheld the counter closed.
The counterparties
Every class of counterparty on which this industry's functions depend was itself the addressee of orders in every quarter, and each such order was an order limiting the commerce of this industry, because the commerce it limited was the transaction the industry performs. The Notice's Q&A-12 recognizes the mechanism for suppliers; the statute's text recognizes it for every counterparty; and the United States (the Government as litigant) has represented that "a business may be suspended 'due to' a government order addressing a third party."134
Contractors and project owners
The construction shutdowns of Pennsylvania, New York, New Jersey, Michigan, Washington, Vermont, Boston, the Bay Area and Alaska, the Port of Seattle's project suspension, the Pennsylvania Department of Transportation's suspension of its own construction from March 16, 2020, the corrections departments' suspension of perimeter construction, and the job-site standards of every State fixed whether and how the equipment renter's customers could work.135
Travelers, airlines and airports
The stay-at-home orders of forty-two States and the District confined the traveler to essential travel; the arrival quarantines of Hawaii, Alaska, New York, New Jersey, Connecticut, Massachusetts, Rhode Island, Vermont, Maine, New Mexico, Kansas, Pennsylvania, Maryland, New Hampshire, the District, Chicago and, in the spring of 2020, Florida, Texas, Kentucky, Delaware, West Virginia, South Carolina, Oklahoma, Montana, Idaho, Utah, North Dakota, Arizona and Wyoming quarantined the traveler on arrival; the entry proclamations and land-border notices barred the international traveler; the Department of Transportation's orders fixed the flights; the conveyance order governed the airport.136
Event hosts and venues
The gathering bans and caps of every State, the convention prohibitions of Maryland and Georgia, the venue closures of every State and the largest metros, the convention-center conversions, and the face-covering and vaccination-proof conditions of the third quarter of 2021 were orders on the events the event renter serves.137 The meetings list on this page sets out the trade shows, conventions, fairs, festivals, tournaments and races on which this industry's group-meeting revenue depended, with the venue jurisdiction's orders in force on each event's dates, the organizer's stated action and the classes of recurring gatherings the orders governed.
Consumers and retail partners
The non-essential retail closures of some forty States closed the retail partners' stores in which consumer agreements are written and the showrooms in which they are written directly; the capacity, curbside, appointment and face-covering rules conditioned them on reopening.138
Manufacturers, dealers and auctions
Michigan's Executive Orders 2020-21 and 2020-42 closed every manufacturing plant not serving critical infrastructure from March 24, 2020; the Federal Reserve recorded in April 2020 that "[s]ome other manufacturing industries, such as autos, mostly shut down"; the White House found in June 2021 that vehicle plants lost production "due to a six-week industry shutdown" and that the pandemic "created a global semiconductor chip shortage impacting automotive, industrial, and" other sectors, a shortage the Department of Commerce was still soliciting evidence of on September 24, 2021; dealers' showrooms closed under the same retail orders; auctions ran remotely or closed.139
Schools, child care, transit and health care
The school closure orders of every State in the spring of 2020, the remote and hybrid orders of the 2020-21 year and the face-covering and quarantine orders of the 2021-22 year reached the workforce's households; the paid-leave mandate of April 1 through December 31, 2020 made the school closure a compulsory leave event for every employer under 500 employees; the quarantine and isolation orders on exposed persons removed employees from every yard; the conveyance order's airborne-transmission control governed every transit commute from February 1, 2021; and the elective-procedure suspensions of the spring of 2020 and the Healthcare Emergency Temporary Standard of June 21, 2021 governed the hospitals and home-health agencies to which the industry rents home health equipment.140
The interconnected economy
"Commerce" in the United States is interstate and international by nature, and the orders of one jurisdiction limited the commerce of employers in every other. The mechanisms by which orders anywhere limited this industry's commerce everywhere are six, and the ecosystem section below applies each to the industry with the restoration arithmetic.
Borders and the international traveler
The entry proclamations of January through May 2020 and January and May 2021, the land-border limitation renewed monthly from March 20, 2020 to November 8, 2021, the Title 42 order, the inbound-testing order of January 26, 2021 and the State Department's suspension of routine visa services removed the international visitor from every airport counter in the country and confined cross-border vehicle movement to essential travel; the foreign governments' own entry bars, quarantines and lockdowns (Canada's bar on discretionary entry by United States residents to August 9, 2021 and its testing and quarantine rules thereafter; the European Union's list, from which the United States was removed on August 30, 2021; China's entry suspension; Mexico's tiered system) are the facts and circumstances in which those federal instruments operated, and this analysis treats them as context and not as orders of an appropriate governmental authority.141
Supply chain
The Defense Production Act delegations and the scarce-materials designation governed the industry's own protective equipment; the plant closures of Michigan and the other closure States idled the manufacturers of the vehicles and equipment the industry buys; the semiconductor shortage that followed constrained fleet acquisition through the third quarter of 2021; the Federal Reserve's Beige Books of July 14 and September 8, 2021 record "shortages of materials and labor, delivery delays, and low inventories of many consumer goods" and the "ongoing microchip shortage."142
Workforce, schools and child care
The school closures of March 2020 reached at least 55.1 million students in 124,000 schools; the paid-leave mandate made every such closure a compulsory leave event; the 2021-22 face-covering and quarantine orders of at least eighteen States and the District and the quarantine orders on exposed persons removed employees from the yard in the third quarter of 2021.143
Travel, tourism and gatherings
The Transportation Security Administration's checkpoint throughput fell 95.2 percent between March 1 and April 14, 2020; the airlines carried 557 million fewer passengers in 2020 than in 2019; the Federal Reserve attributed the deceleration of September 2021 in part to "international travel restrictions"; the gathering caps of every State ran into the summer of 2021 and Hawaii's returned in August.144
Courts, clerks and public offices
The motor-vehicle, recorder, notary and clerk closures of every State suspended the title, registration, lien and disposal transactions of every fleet; the remote-notarization orders and statutes are the record of the closures they answered.145
Transit and health care
The conveyance order, an airborne-transmission control on every conveyance and hub, governed every commute by bus, rail and ferry from February 1, 2021 and every airport shuttle; the elective-procedure suspensions and the Healthcare Emergency Temporary Standard governed the health-care counterparties of the home health equipment line and the entry conditions at every hospital dock the industry delivers to.146