Function by function
Each of the nine functions of a restaurant, bar, catering or food-service business was reached by orders in each of the six quarters, and for each the determination follows in the statute's words. The instruments are identified by class in the text and by exhibit number in the notes; the quarter sections above place them in the quarters.
DR: dining room service
The instruments that reached the dining-room function were the closure orders of forty-nine States and the District, and South Dakota's municipal ordinances, in March and April 2020; the reopening orders at 25, one-third, 50 and 75 percent with spacing and party limits; the capacity and condition orders of the third quarter of 2020; the winter closures and curfews of the fourth quarter; the closures that ran into January and February 2021 and the caps that followed them; the caps to their end dates in the second quarter of 2021; and, in the third quarter of 2021, Hawaii's 50 percent capacity, seated-only, six-foot, no-mingling and face-covering order, the face-covering orders on staff and patrons in seven States and the District for every person and in California and Connecticut for the unvaccinated, and the face-covering orders of the largest cities (each an airborne-transmission control imposed on the room, carried by the operator's duty to enforce it where the instrument so provided), the vaccination-proof conditions of entry, Rhode Island's dining rules to August 31 and Delaware's duties to 12:01 a.m. July 13.144
The modification compelled
The orders compelled closure; capacity by percentage of the fire-code occupant load; six feet between tables; party-size limits; seated-only service; closing hours; buffet and self-service prohibitions; face coverings on staff and on guests not eating or drinking, imposed with screening, distancing and sanitation duties as the workplace infection-prevention and exposure-control conditions of the reopening orders; proof of vaccination at the door; and verification duties on the operator.
The operation of the dining-room function was partially suspended, and in the second quarter of 2020 and the winter of 2020-21 fully suspended in the closure jurisdictions, in every one of the six quarters because of the instruments listed above.
BA: bar and alcohol service
The instruments that reached the bar and alcohol-service function were the closure orders and the regulators' implementing notices of March 2020; the bar re-closures of June 26-29, 2020 in Texas, Florida and Arizona; the bar closures of Louisiana, California, Michigan, Nevada, Kentucky, Washington, Dallas County, Minneapolis and Iowa's six counties in the third quarter of 2020; the alcohol cutoffs and food-with-alcohol rules; the Texas Commission's suspensions and requalification process; the nightly alcohol bans and closings of the winter; the continuing cutoffs and bar-seating bans of the first quarter of 2021; Washington's bar seating closed to June 30, Connecticut's bars closed to May 20, Louisiana's seated-only bars to May 26, New York's curfews to May 31 and to-go lapse June 25 and the State Liquor Authority's May 19 conditions in the second quarter of 2021; and, in the third quarter of 2021, Senate Bill 968's prohibition, enforced by the Texas Commission as a permit condition (Ex. TX-032; Ex. AGY-ST-ALCOHOL-016, context), New Jersey's expansion permits and back-order regime, Massachusetts' outdoor allowances to August 15 (COVID-19 Order No. 50, Ex. MA-030, as carried by Ex. AGY-ST-ALCOHOL-091) and Chapter 20 of the Acts of 2021 § 19 (Ex. MA-053), Illinois' to-go and renewal guidance, California's relief during the emergency, Washington's allowances to July 31, Colorado's to July 8, Missouri's to August 27, the face-covering orders on bar patrons and staff (airborne-transmission controls on the bar as a bar), the vaccination-proof orders on bars and Florida's prohibition on requiring proof.145
The modification compelled
The orders compelled closure of the bar as a bar; alcohol only with a sit-down meal; seated service only; bar counters closed; last call at 9:00, 10:00 or 11:00 p.m.; nightly sales bans; requalification of a bar as a restaurant by gross-receipts affidavit; county opt-in as a condition of reopening; sworn compliance checklists; expansion permits for outdoor premises; sealed-container and hours rules on to-go alcohol; face coverings on standing patrons, as one of the exposure-control conditions on the bar; proof of vaccination; and a prohibition on requiring proof.
The operation of the bar and alcohol-service function was fully suspended in the closure periods and partially suspended in every one of the six quarters because of the instruments listed above, which are the orders of the very authorities that license the function.
TO: takeout, curbside and delivery
The closure orders made takeout, curbside and delivery the only permitted mode and conditioned it: patron limits inside the premises (no more than five members of the public in Alaska and Wyoming; no patron inside except for pickup in Utah; takeout occupancy of 10 percent in New Jersey from April 13, 2020); the to-go alcohol authorizations with their food, container, hours and license-type conditions in more than twenty States; the 10:00 p.m. to-go cutoff in New York; the delivery-commission caps of Washington, Seattle, Minneapolis and San Diego; the Open Restaurants and outdoor-premises regimes of New York City, New Jersey, Arizona, Minneapolis and Lexington; Missouri's EO 20-05; and the conveyance order on delivery drivers using transit.146
The modification compelled
The orders compelled conversion of the whole operation to off-premises service; occupancy limits on the pickup line; sealed containers, food-with-alcohol and hours rules on to-go alcohol; delivery-fee caps; outdoor-premises permits; and, at the end, the compelled withdrawal of the to-go alcohol line as the authorizations lapsed.
The operation of the takeout, curbside and delivery function was partially suspended in every one of the six quarters because of the instruments listed above, which fixed the terms of the only mode the closure orders permitted and then withdrew, by order, the alcohol line those orders had created.
BQ: banquets, catering, events and entertainment
The instruments that reached the banquet, catering and events function were the gathering bans and caps (New York's cancellation of every gathering over fifty; Massachusetts' prohibition of gatherings over twenty-five; New Jersey's closure of venues and cancellation of "parties, celebrations, or other social events"; Minnesota's "Individuals, venues, and businesses must not host celebrations, receptions, private parties, or other social gatherings"; the banquet rules of Ohio, the gathering caps of New Jersey, Connecticut, Tennessee and Mississippi; the live-music bans of West Virginia; Hawaii's and Honolulu's 2021 caps; the Virgin Islands' fifty); the venue closures of casinos, theaters, arenas, hotels and convention centers and the nightclub and dance prohibitions; the health-care and campus vaccination orders on institutional customers; the Healthcare Emergency Temporary Standard; the airport concessionaire directive.147
The modification compelled
The orders compelled cancellation of every event above the cap; closure of the venues in which the industry caters; prohibition of live music and dancing; seated-only and per-table conditions on receptions; face coverings and proof of vaccination at events, as exposure-control conditions on the gathering; and the conditions of the institutional customer.
The operation of the banquet, catering and events function was fully suspended in the second quarter of 2020 and the winter of 2020-21 and partially suspended in every one of the six quarters because of the instruments listed above.
KT: kitchen, food supply and vendors
The instruments that reached the kitchen, food-supply and vendor function were Executive Order 13917 and the CDC-OSHA guidance it made the condition of meat and poultry processing; Executive Order 13909; Michigan's agricultural and food-processing testing order; the land-border notices and entry proclamations; the alcohol wholesalers' returns, back-order and transit rules; the health departments' sanitation, screening and cleaning conditions in every reopening order; the OSHA emphasis program's kitchen inspections; and the Census Bureau's July 2021 finding of supplier delays at 51.4 percent of accommodation and food-service establishments.148
The operation of the kitchen, food-supply and vendor function was partially suspended in every one of the six quarters because of the instruments listed above and because of the orders on the industry's suppliers, which the United States has admitted are orders "addressing a third party" that suspend the business they supply.
HR: hiring, screening, training and certification
The instruments that reached the hiring, screening, training and certification function were the Texas Commission's emergency seller-server rule; the licensing-office closures and renewal extensions of New York, New Jersey, Arizona, Oregon, Illinois and Florida; the screening and exclusion duties imposed by the orders the alcohol regulators implemented and by the workplace standards of Virginia, California, Oregon, Washington, Michigan, Nevada, New Jersey and New York; the paid-leave mandates, federal and State; the employee face-covering, testing and vaccination orders of Nevada, Clark County, New York City, New Orleans, Puerto Rico and the Mescalero Apache Tribe (occupational-health controls on who could work and on what terms); the emphasis program; and MIOSHA's citation of a restaurant.149
The operation of the hiring, screening, training and certification function was partially suspended in every one of the six quarters because of the instruments listed above.
OP: office, administration and remote work
The instruments that reached the office and administration function were the telework mandates of New York City, New Jersey, Pennsylvania, Minnesota, Michigan, Philadelphia and the Mescalero Apache Tribe; the workplace standards; the emphasis program; and the court and licensing-office closures.150
The operation of the office and administration function was partially suspended in every one of the six quarters because of the instruments listed above; the Notice's telework rule describes a workplace whose operations continue "in a comparable manner," and a restaurant's dining room is not such a workplace.
WF: workforce availability
The instruments that reached the workforce function were the stay-at-home orders and curfews; the school and child-care closures and the 2021 school orders; the quarantine and isolation orders and standing orders; the federal leave mandate and the State paid-leave statutes; the conveyance order and transit rules; the eviction moratoria; and the workplace exclusion rules.151
The availability of the industry's workforce on any given day was fixed by orders governing its employees' homes, children, commutes, quarantines and leave in every one of the six quarters, and the operation of the workforce function was partially suspended because of them.
CB: the customer base
The instruments that reached the customer base were the stay-at-home orders confining residents; the telework mandates on office employers; the curfews; the travel quarantines and testing regimes; the entry proclamations, land-border notices and pre-departure order; the venue and event closures; and the vaccination-proof conditions of entry and the prohibitions on requiring proof.152
The Notice's Q&A-13 addresses an employer that "suspends some or all of its operations because its customers are subject to a government order requiring them to stay at home" and nothing else; the orders listed above did not merely reduce demand, they fixed by law who could enter the premises, when, in what number and on what proof, and the operation of the customer-facing functions was partially suspended in every one of the six quarters because of them.153