Function by function
Each of the ten functions of a retail employer was reached, in each of the six quarters, by an order from an appropriate governmental authority that compelled a modification of the way the function operated: closure, capacity, hours, cordoned departments, appointment-only or curbside-only sale, masked entry and its companion exposure controls with a retailer's duty to enforce, rationed goods and fixed prices, warehouse closures and workplace standards, mall closures and eviction stays, gathering caps, licensing-office closures, telework, school and quarantine orders on the workforce, and stay-at-home, quarantine, border and entry orders on the customer. For each function this section names the instruments by quarter, states the modification each compelled, and states the determination in the statute's words. The Notice's own frame is the same: a workplace closed "for certain purposes, but not others" is partially suspended, and a compelled modification "is considered to be a partial suspension of business operations due to a governmental order."183
SF, the sales floor
Second quarter of 2020: the non-essential retail closure orders of forty-three jurisdictions (Exs. NJ-004, NY-002, PA-002, MA-008, CT-007, RI-010, ME-007, VT-010, NH-009, MI-011, IL-005, OH-011, MN-010, IN-006, WI-002, KS-009, KY-008, MD-005, VA-004, NC-005, LA-005, WV-009, DE-005, DC-005, TN-007, AL-011, OK-011, TX-008, GA-010, MS-009, FL-010, SC-011, CA-007, WA-016, OR-007, NM-006, NV-004, CO-012, AZ-010, HI-004, ID-003, MT-009, AK-013); the caps on essential and reopened retail (Exs. DE-012, ME-011, AL-013, NM-010, SC-013, SEC-07-022, SEC-07-011, NC-008, PA-008, WI-003, KY-014, MO-004, TX-011, MI-031, KY-064, SEC-07-017, RI-017, GA-018, VT-097, DE-025); the department closures and advertising bar of Michigan (Ex. SEC-07-022); the curbside-only orders (Exs. VT-015, TX-010, CO-020, IL-013, NV-015, NM-012, MS-011, AZ-016, SEC-07-016, CA-015, DE-019, NY-107, SEC-07-012, MA-017, DC-029); the first masked-entry and exposure-control orders (Exs. MD-008, SEC-07-011, PA-008, MI-020, IL-013, MA-016, NM-016, VA-012, NV-019, NC-013, WA-037, HI-006). Third quarter of 2020: the capacity orders of every closure State (Exs. SEC-07-013, NJ-026, NY-125, TX-021, TX-023, PA-011, MD-016, LA-079, MS-038, CA-055, NM-016, MI-031, WA-035) and the masked-entry and exposure-control orders of thirty-four States and the District with retailer duties (Exs. NM-023, NM-026, TX-022, WA-040, ME-029, KY-022, LA-014, AR-060, OH-030, MN-027, WI-009, VT-027, NE-072, NE-079, MET-PHX-001, MET-CIN-001, MET-CLE-006, MET-CMH-018, MET-ORL-009, MET-TPA-008, MET-DCM-038). Fourth quarter of 2020: the winter caps and closures (Exs. CA-020, NM-039, NM-040, NM-047, IL-031, WA-047, MI-061, PA-028, DE-033, RI-032, MA-040, DC-014, MD-021, LA-023, MT-018, MT-052, AK-074, MET-BNA-071), Ohio's compliance order and curfew (Exs. SEC-07-037, OH-039), New Mexico's 10:00 p.m. closing (Ex. NM-036), Nevada's signage and entrance-counting duties (Ex. NV-028), the new face-covering duties placed on businesses and their customers (Exs. UT-029, ND-061, WV-051, WY-040, NC-022, NC-023). First quarter of 2021: the same orders through their withdrawal (Exs. TX-025, TX-026, TX-029, MD-026, OK-039, WY-050, NC-027, MI-066, LA-029, ME-053, WA-064) and the caps in force in twenty-five jurisdictions on March 31 and the binding retail conditions of four more (Exs. CA-055, OR-035, NM-047, CO-036, IL-031, MN-035, PA-022, NJ-026, NY-125, DE-058, MA-040, KY-064 (Version 1.0, superseded; the 60 percent step of March 1, 2021 per Ex. KY-018 and the Governor's release), Ex. IN-046 as continued by EOs 20-50 through 21-09 (Ex. IN-056, EO 21-06, the fourth continuation, effective March 1 to 31, 2021, extended by EO 21-09 to April 5, 2021), Exs. VT-043, HI-016, AL-045, AL-047, WV-060, UT-039, CT-094, VA-016, GA-032, NE-026; Arizona's Ex. AZ-019 to March 25). Second quarter of 2021: the caps through their stepped expiry (Exs. PA-033, IN-059, AL-049, CO-051, WV-063, UT-043, NC-029, IL-054, NY-054, NJ-050, CT-046, DE-037, DC-073, RI-037, ME-057, NE-095, LA-032, MN-039, VA-029, MA-048, PA-036, NV-074, OH-050, IL-037, KY-049, VT-098, CA-029, MI-076, WA-065, WA-072, OR-043, NM-057, NM-060) and the unvaccinated-patron rules (Exs. CA-029, NY-133, NM-060, CT-045, RI-071, WA-070, NV-039). Third quarter of 2021: the HHS designation (Ex. SEC-07-031); Hawaii's face-covering requirement (Exs. HI-023, HI-024); the statewide reinstatements (Exs. NV-041, NV-051, DC-057, LA-036, LA-038, LA-040, OR-048, NM-067, NM-070, WA-078, WA-080, IL-042, IL-043); the unvaccinated-patron rules (Exs. CA-029, CA-035, NY-133, NY-073, CT-050); the county and city orders (Exs. MET-LA-018, MET-LA-019, MET-LA-035, MET-LA-053, MET-SAC-015, MET-SFO-010, MET-SFO-049, MET-STL-021, MET-STL-022, MET-STL-069, MET-KC-002, MET-KC-006, MET-KC-045, MET-MSY-027, MET-MSY-063, MET-PHL-019, MET-BOS-013, MET-BOS-036, MET-BOS-150, MET-CHI-026, MET-CHI-041, MET-CHI-049, MET-CLT-023, MET-CLT-025, MET-CLT-015, MET-CLT-031, MET-BAL-017, MET-DCM-023, MET-DCM-044, MET-DEN-033, CO-076, MET-MKE-023, MET-MKE-024, MET-CMH-048, MET-CMH-050, OH-094, IN-093, NE-080, IA-067, MET-ATL-016, MET-ATL-017, MET-ATL-063, MET-DFW-028, MET-DFW-031, MET-SAT-067, MET-SAT-068, MET-SEA-002).
The modification compelled
The door was closed to the public; sale was confined to a channel outside the door; admission was fixed at a percentage of the fire marshal's certificate, at a number per thousand square feet, at one per 100 or 300 square feet, at ten patrons or at one adult per household; departments were cordoned; hours were cut by curfew or closing time; entry was conditioned on the workplace infection-prevention and exposure-control requirements the orders attached to the door, among them a face covering the retailer was required to enforce and, in Washington, forbidden to waive; the right to be open was conditioned on a compliance inspection; and the goods on the shelf were rationed and their prices fixed. The Notice's own Example 3 to Q&A-17 states the second-quarter 2020 result for the industry in terms: "Employer G, a retail business, must close its retail storefront locations due to a governmental order," its online fulfillment "is unaffected," and its operations "are considered to have been partially suspended due to the governmental order."184
The operation of the sales floor was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the closure, curbside, capacity, department, hours, compliance, masked-entry and designation instruments cited above.
CU, curbside, pickup and online fulfillment
Second quarter of 2020: the curbside-only orders that made the channel the sole permitted mode of sale and fixed its mechanics (Exs. VT-015, TX-010, CO-020, IL-013, NV-015, NM-012, MS-011, AZ-016, SEC-07-016, CA-015, DE-019, NY-107, SEC-07-012, MA-017, DC-029, WI-003, IN-016, SEC-07-023), and the orders that forbade curbside for listed categories (Ex. DE-013). Third quarter of 2020 through the second quarter of 2021: the workplace standards and distancing duties that governed the pickup lane and the fulfillment floor (Exs. PA-008, MI-054, VA-037, CA-024, OR-049, WA-072, NJ-050), and the New Mexico reset that returned non-essential retail to curbside from November 16 to December 1, 2020 (Exs. NM-039, NM-040). Third quarter of 2021: the HHS designation on the goods fulfilled (Ex. SEC-07-031), the workplace standards (Exs. CA-024, VA-037, OR-049, WA-072), the quarantine orders on fulfillment staff (Exs. MET-LA-021, MET-LA-022, MET-SAN-024, IN-092) and the conveyance order on the commute (Ex. FED-020).
The modification compelled
A business built on the sales floor was confined by order to a channel that carried one-ninth of the industry's revenue in 2019, with the order fixing the method of ordering (telephone or online only), the place of delivery (outside the store), the staffing (one employee on site in New York; one-person curbside in Wisconsin) and, in Delaware, forbidding the channel altogether for listed categories. The Notice's Example 6 to Q&A-17 names the case: "Employer J, a large retailer," permitted only "curbside service to pick up items ordered online or by phone," is "partially suspended due to the governmental order."185
The operation of the curbside and fulfillment function was partially suspended in the second quarter of 2020 and, in New Mexico, the fourth quarter of 2020, because of the curbside-only orders, and in every quarter because of the workplace, designation, quarantine and conveyance instruments that governed the channel.
ST, receiving, stockroom, back-of-house and distribution
Second quarter of 2020: the warehouse and workforce-reduction orders of New Jersey, Pennsylvania and New York (Exs. SEC-07-011, PA-002, PA-004, NY-002); the Worker Safety Order (Ex. PA-008); the HHS designation on inventory (Ex. SEC-07-006). Third and fourth quarters of 2020: the workplace standards of Michigan (Ex. MI-054), Virginia (Ex. VA-012), California (Ex. CA-024 chain) and New Jersey (EO 192, carried at Exs. NJ-050, NJ-051); the designation as extended (Exs. SEC-07-034, SEC-07-035). First and second quarters of 2021: the same standards; the conveyance order on the warehouse commute (Ex. FED-020); OSHA's National Emphasis Program (Ex. FED-082); the designation (Ex. SEC-07-036). Third quarter of 2021: the designation (Ex. SEC-07-031); DIR 2021-03 targeting NAICS 445110, 452210 and 452311 (Exs. AGY-FED-LABOR-IMMIGRATION-088, FED-083); the Cal/OSHA, Oregon, Virginia and Washington standards (Exs. CA-024, CA-067, OR-049, VA-037, WA-072); New York's HERO Act plans (Ex. ECO-B-120); the quarantine and isolation orders (Exs. MET-LA-021, MET-LA-022, MET-LA-068, MET-LA-069, MET-SAN-024, IN-092, RI-049, KS-057).186
The modification compelled
Warehouse occupancy was capped at 50 percent under exposure-control conditions of face coverings and ten-person meeting caps; non-food warehousing was closed; every worker on the dock was screened, distanced, masked and, if exposed, excluded for a fixed period by order; the goods received were limited in quantity by federal designation; and the premises were targeted for programmed federal inspection.
The operation of the receiving, stockroom and distribution function was partially suspended in each of the six quarters because of the warehouse-closure, occupancy, workplace-standard, designation and quarantine instruments cited above, applied under the programmed federal inspection of DIR 2021-03.
SC, supply chain and imports
Second quarter of 2020: the plant closures of Michigan, Pennsylvania, New York, New Jersey and Washington (Exs. MI-011, SEC-07-022, PA-002, PA-004, NY-002, SEC-07-011, WA-016); the Defense Production Act orders and the designation (Exs. FED-070, FED-071, FED-072, FED-073, SEC-07-006); FEMA's export rule (Exs. FED-075, FED-076); the land-border notices and entry proclamations (Exs. FED-216 to FED-219, FED-239 to FED-242, FED-200 to FED-205, FED-210, FED-211); the CBP duty postponement as context (Ex. SEC-07-040). Third and fourth quarters of 2020: the border renewals (Exs. FED-220 to FED-225, FED-243 to FED-248); the export rule extensions (Exs. FED-077, FED-078); the designation extensions (Exs. SEC-07-034, SEC-07-035); the meat and poultry priority order (Ex. FED-073); the FMC's Fact Finding 29 supplemental order of November 19, 2020, a fourth-quarter order of the Commission (Ex. AGY-USCG-PORTS-050). First and second quarters of 2021: Proclamations 10143 and 10199 (Exs. FED-207, FED-208); the border renewals (Exs. FED-226 to FED-232, FED-249 to FED-255); the testing order (Ex. FED-042); the designation (Ex. SEC-07-036); Executive Order 14017 and the 100-day review (Exs. SEC-07-042, SEC-07-043); the export rule to June 30 (Ex. FED-079). Third quarter of 2021: the designation (Ex. SEC-07-031); the border renewals (Exs. FED-233 to FED-235, FED-256 to FED-258); the proclamations (Exs. FED-207, FED-208); the CDC and Captain of the Port orders on crews and terminals as the Coast Guard's bulletin describes them (Ex. AGY-USCG-PORTS-038, the agency's description, cited as context); the FMC's interim recommendations (Ex. AGY-USCG-PORTS-052, the regulator's account of the congestion, cited as context); the Commerce semiconductor notice (Ex. ECO-A-077).187
The modification compelled
The plants that make the goods were closed or capped by order; the borders were closed to the buying trip and the cross-border shipment's non-essential escort; the foreign vendor's visit was suspended by proclamation; the designated goods were allocated away from retail accumulation and their export barred; and the ports through which the holiday inventory moved operated under the CDC and Captain of the Port orders the Coast Guard's bulletins describe and under the Commission's supplemental order and continuing investigation. The Federal Reserve's own account is that companies "canceled orders for materials" in 2020 and that by mid-2021 "low inventories of many consumer goods" were widespread.188
The operation of the supply-chain and import function was partially suspended in each of the six quarters because of the plant-closure, allocation, export, border, entry, testing and port instruments cited above, each an order limiting commerce on which the shelf depended; the Notice's Q&A-12 and the United States' admission that a business may be suspended due to an order "addressing a third party" confirm what the statute's text provides.189
ML, malls, landlords and premises
Second quarter of 2020: the mall closure orders (Exs. SEC-07-020, CT-005, NY-012, MD-004, NJ-004, LA-005, OR-007, WV-009, SEC-07-021, DE-013) and the closure of every mall with its non-essential tenants in the closure States; the construction shutdowns that halted build-outs (Ex. SEC-07-011); the reopening conditions on malls (Exs. LA-076, SEC-07-017, TX-011, MD-013). Third quarter of 2020: New York's mall guidance and the New York City mall reopening (Exs. NY-114, NY-035); Louisiana's Phase 3 mall rules (Ex. LA-079); the Blueprint's mall provisions (Ex. CA-055); the July 13, 2020 closure of indoor malls in California's Monitoring List counties (Ex. CA-010). Fourth quarter of 2020 and first quarter of 2021: Baltimore's Executive Order No. 33 on mall food courts (October 1, 2020, effective 5:00 p.m. October 2; Ex. MET-BAL-063); Washington's food-court closure (Ex. WA-047); New Mexico's mall closure in the reset (Exs. NM-039, NM-040); the winter caps on every mall tenant. Second quarter of 2021: the caps through their expiry; New Jersey's mall play areas closed to May 28, 2021 (Ex. NJ-050). Third quarter of 2021: the commercial and residential eviction stays of New York (to August 31 and from September 2; Exs. NY-085, NY-086), Washington (Ex. ECO-C-084), California (Ex. ECO-C-101), Illinois (Ex. ECO-C-091) and New Jersey (Ex. ECO-C-081); the CDC orders (Exs. FED-025, FED-026); the vaccination-proof conditions on mall tenants in New York City, San Francisco, New Orleans and Honolulu (Exs. MET-NYC-017, MET-SFO-011, MET-MSY-029, MET-HNL-035); Hawaii's gathering caps (Ex. HI-025).
The modification compelled
The mall was closed around the store, earlier than the store and for longer; when it reopened its common areas, food courts and play areas were closed or capped and its HVAC conditioned; the anchors and entertainment tenants on whose traffic percentage rent and co-tenancy clauses depend were closed longest and, in the third quarter of 2021, conditioned on proof of vaccination; build-outs were halted; and the landlord's remedies were stayed.
The operation of the mall and premises function was partially suspended in each of the six quarters because of the mall closure, common-area, food-court, construction, eviction-stay and vaccination-proof instruments cited above.
MK, promotions, events and demonstrations
Every quarter from the second quarter of 2020 through the second quarter of 2021: the gathering caps of every State (ten, twenty-five, fifty or a percentage) that barred the in-store event, the launch, the signing and the demonstration (Exs. NJ-002, MD-013, GA-018, NC-010, CT-078, MA-040, IL-031, OR-035, WA-047 and the fifty-one rows of the table on this page); the convention-center and venue closures that removed the trade show and the buying market; Michigan's bar on the advertising of non-essential goods from April 13, 2020 (Ex. SEC-07-022); the entry proclamations that suspended the foreign buyer's and vendor's visit (Exs. FED-200 to FED-208). Third quarter of 2021: Hawaii's gathering caps of ten and twenty-five (Ex. HI-025); Nevada's Directives 049 and 050 (Exs. NV-043, NV-044); Los Angeles County's and Pasadena's mega-event orders (Exs. MET-LA-019, MET-LA-054, MET-LA-056); Key to NYC (Ex. MET-NYC-017); San Francisco's and New Orleans's venue rules (Exs. MET-SFO-011, MET-MSY-029); the Task Force's approval requirement for federally hosted events of more than fifty (Ex. FED-272); the entry proclamations and border notices (Exs. FED-207, FED-208, FED-233, FED-256).
The modification compelled
The gathering that is a promotion was forbidden or capped; the advertising of what could not be sold was barred; the trade show was closed; the foreign buyer was kept out; and in the third quarter of 2021 the large event was conditioned on the airborne-transmission controls of masking or proof of vaccination.
The operation of the promotions and events function was partially suspended in each of the six quarters because of the gathering, venue, advertising, entry and vaccination-proof instruments cited above.
HR, hiring, screening and training
Second quarter of 2020: the closure of motor-vehicle, recorder and licensing offices under the States' emergency and closure orders (Exs. IN-006, CA-007, ECO-B-025), recorded in the agencies' own announcements of the closures (Exs. AGY-ST-DMV-SOS-RECORDERS-002, AGY-ST-DMV-SOS-RECORDERS-018, AGY-ST-DMV-SOS-RECORDERS-019, cited as context); the FFCRA leave mandate (Exs. FED-170, FED-171); New York's Chapter 25 and Colorado's HELP rules (Exs. AGY-ST-LABOR-WORKPLACE-003, AGY-ST-LABOR-WORKPLACE-044); the screening, training and plan duties of the reopening orders (Exs. PA-008, SEC-07-013, MN-017, OH-019, KY-064, GA-018). Third and fourth quarters of 2020: the FFCRA mandate to December 31 (Ex. FED-172); the workplace standards (Exs. MI-054, VA-012, CA-024); Ohio's compliance order (Ex. SEC-07-037); Colorado's Healthy Families and Workplaces Act (Ex. AGY-ST-LABOR-WORKPLACE-004). First and second quarters of 2021: the standards (Exs. VA-037, CA-024, OR-049); OSHA's National Emphasis Program (Ex. FED-082); Arizona's mandatory mitigation policies to March 25 (Ex. AZ-019). Third quarter of 2021: DIR 2021-03 (Ex. AGY-FED-LABOR-IMMIGRATION-088); the HERO Act plans (Ex. ECO-B-120); the Cal/OSHA, Oregon, Virginia and Washington standards (Exs. CA-024, OR-049, VA-037, WA-072); New Jersey's EO 192 rules (Exs. NJ-050, NJ-051); Puerto Rico's and New Orleans's employee vaccination-or-test orders (Exs. AGY-TERRITORIES-034, MET-MSY-032); the Healthcare Emergency Temporary Standard for in-store clinic staff (Ex. FED-080); Pittsburgh's paid-sick-leave ordinance (Ex. MET-PIT-055).
The modification compelled
Hiring for licensed categories waited on closed offices; every new hire was screened, trained and recorded under a written plan the order required; the floor on which training happens was capped; the employee who was quarantined or whose school closed was paid leave by federal and State mandate; and in the third quarter of 2021 the employee of an in-store clinic, a Puerto Rico store or a New Orleans venue was vaccinated or tested by order.
The operation of the hiring, screening and training function was partially suspended in each of the six quarters because of the licensing-office, leave-mandate, screening, plan, standard and vaccination instruments cited above.
OP, headquarters, buying offices and call centers
Second quarter of 2020: the telework mandates of New York (Exs. NY-003, NY-002), New Jersey (Ex. NJ-004), Oregon ("Work in offices is prohibited whenever telework and work-at-home options are available"; Ex. OR-007), Rhode Island (Ex. RI-006), Washington (Ex. WA-016), Pennsylvania (Ex. PA-002), the Bay Area (Ex. MET-SFO-001) and the closure States generally; OMB's federal telework and screening directives on every federal customer (Exs. FED-264, FED-268). Third and fourth quarters of 2020: New Jersey's mandate; Pennsylvania's "[u]nless impossible, all businesses must conduct their operations remotely" from November 23 (Ex. PA-022); Washington's "Professional Services are required to mandate that employees work from home when possible" from November 17 (Ex. WA-047); California's remote-office rule in Purple (Ex. CA-055); Massachusetts' 25 percent office cap (Ex. MA-040); Rhode Island's compelled telework (Ex. RI-032); Connecticut's 50 percent (Ex. CT-078). First and second quarters of 2021: the same to their expiry (Pennsylvania April 4, Ex. PA-033; New Jersey June 4, Ex. NJ-051; Rhode Island May 21; Massachusetts May 29, Ex. MA-048; California June 15, Ex. CA-029); Executive Order 13991 and the 25 percent federal cap to June 10 (Exs. FED-060, FED-270, FED-271). Third quarter of 2021: the HERO Act plans (Ex. ECO-B-120); the Cal/OSHA, Oregon, Virginia and Washington standards on every office (Exs. CA-024, OR-049, VA-037, WA-072); the Task Force rules on every visit to a federal customer (Exs. FED-272, FED-278); the face-covering orders, airborne-transmission controls on every indoor workplace, of the reinstatement States and metros (Exs. LA-036, OR-048, NM-067, WA-078, IL-042, NV-041, DC-057, MET-LA-018, MET-SFO-010, MET-STL-021, MET-PHL-019, MET-BOS-013, MET-CHI-026).
The modification compelled
The office was closed to in-person work or capped; the buyer negotiated and the call-center agent answered from home because the order required it; and in the third quarter of 2021 every office in the standard States ran an exposure-prevention plan by order and every office in the reinstatement jurisdictions was placed under the reinstated face-covering controls.
The operation of the headquarters, buying-office and call-center function was partially suspended in each of the six quarters because of the telework, office-capacity, workplace-standard and face-covering instruments cited above; an operation conducted remotely under compulsion is an operation the order changed, and "comparable operations" is not in the statute.190
WF, workforce availability
Second quarter of 2020: the school closure orders of every State (Exs. ECO-B-016 to ECO-B-019, ECO-B-032 to ECO-B-034, ECO-B-059, ECO-B-060, ECO-B-062, LAW-229); the child-care emergency-only orders (Exs. ECO-B-026, CT-011); the FFCRA mandate (Exs. FED-170, FED-171); the stay-at-home orders on the workforce itself (Ex. LAW-201); transit service reductions and rear-boarding rules (Exs. MET-IND-070, MET-CIN-016, MET-BOS-091). Third and fourth quarters of 2020: the fall remote and hybrid school orders (Exs. ECO-B-028, ECO-B-049); the FFCRA mandate to December 31 (Ex. FED-172); the winter school closures; the quarantine orders of exposed persons. First and second quarters of 2021: the conveyance order and transit directives from February 1 (Exs. FED-020, FED-050, FED-051, FED-054); the spring school orders; the Healthcare Emergency Temporary Standard on the workforce's health-care providers (Ex. FED-080). Third quarter of 2021: the conveyance order and directives (Exs. FED-020, FED-051, FED-052); the 2021-22 school and child-care mask and quarantine orders of more than twenty States and of the counties and cities named in the third quarter of 2021 above (Exs. NJ-055, KY-052, CT-050, RI-055, NY-073, IL-040, PA-042, CA-034, DE-044, DE-045, DE-066, LA-036, MD-093, MA-071, NV-042, NM-067, WA-075, OR-045, HI-043, VA-044, DC-057, IN-071, MI-084, MET-DEN-032, MET-SLC-016, MET-HOU-038, AK-093, TN-036, MET-DET-013, MET-CLE-011, MET-MKE-070, MET-MSY-080); the quarantine and isolation orders (Exs. MET-LA-021, MET-LA-022, MET-LA-068, MET-LA-069, MET-SAN-024, IN-092, RI-049, RI-052, KS-057, HI-052, LA-054); the State-employee vaccination-or-test orders that governed the households of the retail workforce's spouses (Exs. NM-063, VA-045, NC-031, MA-068, AZ-045, CA-039, MN-044).
The modification compelled
The parent whose child's school or child-care center was closed, masked, quarantined or sent home stayed home; the employee exposed to a case was excluded for a fixed period by order; the employee who rode to work did so under the federal conveyance order's airborne-transmission controls on pain of criminal fine; and the leave the employee took was paid by mandate. The Bureau of Labor Statistics counted 5.2 million persons in July 2021 and 5.0 million in September 2021 "unable to work because their employer closed or lost business due to the pandemic," and the Federal Reserve attributed the "extensive labor shortages" of the summer of 2021 in part to "childcare needs."191
The operation of the workforce function was partially suspended in each of the six quarters because of the school, child-care, leave, quarantine, transit and conveyance instruments cited above, each an order limiting commerce, travel or group meetings of which the retailer's workforce was the object.
CB, the customer base
Second quarter of 2020: the stay-at-home orders of forty-two States and territories (Ex. LAW-201; Exs. NJ-004, NY-002, CA-007, WA-016, MI-011, IL-005, OH-011, PA-002, MA-008, MD-007, VA-004, DC-006, LA-005, MN-010, MO-004, NM-006, NV-012, CO-012, OR-007, TX-008, FL-010, GA-010, MS-009, SC-013, TN-007, KY-008, WI-002, IN-006, RI-010, CT-007, ME-007, VT-010, NH-009, DE-005, WV-009, AZ-010, HI-004, ID-003, MT-009, AK-013, UT-004, NC-005, AL-013, KS-009, OK-011); the land-border notices and entry proclamations (Exs. FED-216, FED-239, FED-200 to FED-205); the first traveler quarantines (Exs. ECO-C-014, ECO-C-016, ECO-C-018, ECO-C-028, ECO-C-010, ECO-C-024 to ECO-C-026, ECO-C-039); the HHS designation on price and quantity (Ex. SEC-07-006); the State price-gouging orders (Exs. AGY-ST-UTILITIES-HOUSING-AG-031 to AGY-ST-UTILITIES-HOUSING-AG-038). Third and fourth quarters of 2020: the masked-entry and exposure-control orders on every customer (the SF exhibits above); the traveler quarantines of New York, Connecticut, New Jersey, New Mexico, Hawaii, Chicago and their counterparts (Exs. ECO-C-001, ECO-C-002, ECO-C-005, ECO-C-006, ECO-C-019, ECO-C-021, ECO-C-010, ECO-C-031); the border renewals (Exs. FED-220 to FED-225, FED-243 to FED-248); the CDC eviction moratorium (Ex. FED-022); California's price orders (Exs. SEC-07-030, SEC-07-032). First and second quarters of 2021: the masked-entry and exposure-control orders of thirty-one jurisdictions; Proclamations 10143 and 10199 (Exs. FED-207, FED-208); the testing order (Ex. FED-042); the border renewals (Exs. FED-226 to FED-232, FED-249 to FED-255); the designation (Ex. SEC-07-036); EO N-03-21 (Ex. SEC-07-033); the eviction moratorium extensions (Exs. FED-023, FED-024, FED-025). Third quarter of 2021: the designation (Ex. SEC-07-031); the border renewals and proclamations (Exs. FED-233 to FED-235, FED-256 to FED-258, FED-207, FED-208); Hawaii's Safe Travels (Ex. ECO-C-010); Kansas's quarantine list (Ex. KS-057); the face-covering reinstatements with their business-enforcement duties (the SF exhibits above); the vaccination-proof conditions on the tenants the customer visits (Exs. MET-NYC-017, MET-SFO-011, MET-MSY-029, MET-HNL-035); the eviction orders (Exs. FED-025, FED-026, ECO-C-084, ECO-C-101, ECO-C-091, ECO-C-081); EO N-03-21 to September 4 (Ex. SEC-07-033); Florida's, Texas's and North Dakota's prohibitions on vaccination-documentation conditions at the retailer's own door, cited as context (Exs. FL-030, TX-036, ND-082).192
The modification compelled
The resident customer was confined to her home; the traveling customer was quarantined on arrival; the cross-border customer was stopped at the border; the foreign customer was kept out by proclamation; the customer who came was admitted only under the exposure-control conditions at the door, a face covering among them, on pain of the retailer's own liability; the goods she bought were rationed and their price fixed; and the retailer was told by statute what it could and could not ask of her.
The operation of the customer-base function was partially suspended in each of the six quarters because of the stay-at-home, quarantine, border, entry, masked-entry, price and vaccination-proof instruments cited above. A stay-at-home order on the customer base is an order limiting commerce, travel and group meetings in terms; the commerce it limited was the retailer's; and "customers" is not in the statute.193