The interconnected economy and the broken leg
The statute reaches the mechanism by which orders anywhere limited commerce everywhere, and it reaches the period during which an operation that an order had dismantled remained dismantled after the order lapsed. "Commerce" is trade and the exchange of goods and services; in the United States it is interstate and international by nature; and the orders that closed a manufacturer in Michigan, a school in every State, a courthouse in Delaware, a consulate abroad or a border crossing in Detroit limited the commerce of every employer in this industry that bought from, placed workers with, appeared before, hired through or transported participants across them. The clause's phrase "during the calendar quarter" modifies "suspended," not "orders"; the suspension an order caused continues, because of that order, for the period its compelled dismantling took to reverse; and in this industry that period is measured by the orders' own reopening steps, which ran to June 2, 2021 in Ohio, June 15, 2021 in New Jersey and beyond September 30, 2021 for every federal condition.
The interconnected economy
Six mechanisms carried orders issued elsewhere into the operations of this industry, and the United States has admitted the principle: "a business may be suspended 'due to' a government order addressing a third party."220
Supply chain and borders
The President's Defense Production Act delegations of March 18, 23 and 27, 2020, the Secretary of Health and Human Services' designation of respirators, masks, gloves, gowns and disinfectants as scarce materials on March 25, 2020, and FEMA's export-allocation rule from April 7, 2020 through June 30, 2021 fixed the supply of the personal protective equipment on which every group home, day center, shelter and van depended; the entry proclamations of January 31, 2020 through November 8, 2021 and the land-border prohibitions of March 21, 2020 through November 8, 2021 limited commerce and travel with every foreign supplier and every cross-border worker; the meat and poultry order of April 28, 2020 and the retail and dining closures of every State changed the supply of donated and commodity food on which food banks operate; and the Federal Reserve recorded in July and September 2021 that "[s]upply-side disruptions became more widespread, including shortages of materials and labor, delivery delays, and low inventories," and that activity was "constrained by supply disruptions and labor shortages."221
Workforce, schools and child care
Every State closed every school building by March 25, 2020 and, in forty-eight States, for the remainder of the year, idling at peak at least 55.1 million students in 124,000 public and private schools; the 2020-21 year ran remote or hybrid under mandatory frameworks in most States; the 2021-22 year opened under masking, testing and quarantine orders in at least eighteen States and the District. The FFCRA compelled paid leave from April 1 to December 31, 2020 whenever a school or place-of-care closure or a quarantine order idled a worker. The quarantine and isolation orders on exposed persons, including King County's directive of May 21, 2020 "until further notice" and Michigan's 2020 PA 238, removed direct support professionals from group homes and day programs shift by shift. The Bureau of Labor Statistics recorded that in July 2021, 5.2 million persons "had been unable to work because their employer closed or lost business due to the pandemic," and in September 2021, 5.0 million; the Beige Book of September 8, 2021 attributed "extensive labor shortages that were constraining employment and, in many cases, impeding business activity" in part to "childcare needs."222 For an industry whose workforce is direct support professionals paid at Medicaid-constrained wages, whose volunteers are concentrated among adults over sixty-five, and whose participants include the children and parents in the child-welfare system, every one of those orders was an order on the operation.
Travel, tourism and gatherings
The gathering caps of every State fixed the size of every senior-center meal, pantry distribution, day-program room and shelter dormitory; the travel quarantines of New York, New Jersey, Connecticut, Hawaii, Alaska, Massachusetts, Vermont, Maine, Rhode Island, New Mexico, Kansas, Pennsylvania, the District and Chicago governed the interstate movement of staff, families and volunteers; and the conveyance order and the TSA directives governed every trip by transit and every van from February 1, 2021.223 The Library's group-meetings records list the gatherings themselves, from the congregate meal to the national conference, with the venue orders that governed each in 2020 and 2021.
Courts, clerks and public offices
The court orders of every State suspended in-person dependency, guardianship, protective and eviction proceedings from March 2020, and the third-quarter 2021 orders of the courts kept remote presumptions, face coverings and testing in the courthouses in which family-services agencies appear; the Social Security Administration's offices were closed to the public from March 17, 2020 to April 7, 2022 and the Department of Veterans Affairs' regional offices from March 19, 2020; the motor-vehicle offices through which drivers are licensed closed or went to appointment-only in every State; and the eviction moratoria of the CDC, the agencies and the States governed every homelessness-prevention caseload through September 30, 2021.224
Transit
Transit agencies cut service, moved to rear-door boarding, suspended fares and capped passengers under emergency orders in 2020, and enforced the federal conveyance order and the TSA directives from February 1, 2021 through the quarter, with Federal Railroad Administration Emergency Order No. 32 binding every railroad from March 1, 2021; the commute of every aide and the trip of every participant ran under those rules.225
Health care as counterparty
The hospitals and skilled nursing facilities that discharge and refer participants to adult day and residential programs suspended elective procedures, barred visitors, tested staff and ran under federal conditions of participation in every quarter; the CMS visitation, testing and vaccine-offering rules on nursing homes fixed the pace of every discharge; and the health care worker mandates of 2021 reached the nurses, therapists and aides the industry shares with the health care sector.226
The counterparty orders as orders
Each of those instruments is an order from an appropriate governmental authority limiting commerce, travel or group meetings, and each is relied on as such under the statute's text; the Notice's Q&A-12 confirms the causation logic for suppliers, the United States has confirmed it for third parties generally, and the statute's words extend it to every counterparty: a school closure that idles a direct support professional, a court order that suspends a dependency hearing, a border prohibition that stops a supplier, a manufacturing closure that cancels a sheltered-work contract and a stay-at-home order that confines a volunteer each limited the commerce of the employer whose operation depended on them.227
Continuing suspension
The Suspension Clause asks whether "the operation of the trade or business ... is fully or partially suspended during the calendar quarter due to orders." The phrase "during the calendar quarter" modifies "suspended." Congress did not write "orders in effect during the calendar quarter," and a court "must presume that a legislature says in a statute what it means and means in a statute what it says there."228 The question the clause asks is therefore the state of the operation within the quarter and its cause, and Tri-State fixed both terms: a suspension is "a temporary delay, interruption, or termination of a portion an employer's business," and "due to" is but-for causation.229 An operation that an order dismantled remains delayed, because of that order, for the period its restoration takes; but for the order, the dismantling would not have occurred and the restoration would not have been required.
The Notice's own recognition
The Service reads the clause the same way. Q&A-22 provides that "[a]n employer with business operations that are fully or partially suspended due to a governmental order during a portion of a calendar quarter is an eligible employer for the entire calendar quarter."230 Q&A-16 recognizes that a suspension an order caused persists after the order operates: "some adjustment period is expected," and a "significant delay ... in moving operations" to a new mode is itself "a partial suspension during that transition period," the two-week illustration offered "for example."231 The Service is bound by both passages to the same extent as a revenue ruling.232
What the orders compelled this industry to dismantle
The orders of March 2020 compelled adult day centers to send every participant home and every aide, nurse, activity director and driver off the schedule; compelled day-habilitation programs to close their sites, rewrite every service plan for in-home or remote delivery, and rebill every unit under Appendix K; compelled group homes to bar every visitor, cancel every group activity and communal meal, cohort residents and reassign staff; compelled sheltered workshops to stop production and release the contracts of customers that were themselves closed; compelled congregate-meal programs to close their dining rooms and build home-delivery routes; compelled shelters to de-densify, move residents into hotels under non-congregate orders and rewrite their case-management, re-evaluation and inspection practices under HUD's waivers; compelled family-services agencies to move casework to telephone and video and to appear in court remotely; and compelled every employer in the industry to furlough or reassign the workforce of the functions the orders had closed.233
How long the orders' own steps took to restore it
The restoration is measured from the orders themselves, not from any employer's figures. New Jersey's adult day health services facilities were closed by order from March 2020 until June 15, 2021, fifteen months, and reopened only under Executive Directive 21-007's screening, personal-protective-equipment, reporting and infection-control protocols, in force through the third quarter of 2021 and to January 11, 2022: a program that could not admit a participant for fifteen months, and could admit one only under those protocols in the sixteenth, was not operating normally on July 1, 2021.234 Ohio's Director closed adult day care and senior centers on March 21 and 24, 2020, reopened them by phases from September 21, 2020, kept adult day support and vocational habilitation out of congregate settings under an order amended a second time on March 17, 2021, and rescinded every one of those orders at 12:01 a.m. on June 2, 2021, four weeks before the third quarter began.235 Maryland closed every senior center on March 13 and every adult day care center on March 16, 2020, permitted adult day care centers to reopen only from 5:00 p.m. on March 12, 2021, under Department of Health directives that kept medical adult day care under face-covering rules, one of the exposure-control conditions of the reopening, through May 14, 2021, and kept the order under which they reopened in force to August 15, 2021.236 Delaware closed its senior centers, adult day centers and congregate nutrition programs on March 24, 2020, permitted them to reopen at 30 percent of fire occupancy from July 27, 2020, and lifted the cap only at 8:00 a.m. on May 21, 2021: ten months at 30 percent, preceded by four months closed.237 California's licensing agency issued the Adult Day Programs COVID-19 Guidelines on September 30, 2020 with initial reopening capacity of "no more than 50%" and replaced them on July 27, 2021 with PIN 21-33-ASC's vaccination-verification, testing, respirator and masking regime.238 Iowa closed every adult day service and senior center on March 17, 2020, permitted reopening from June 12, 2020 only under Department of Public Health guidance, and carried its distancing and gathering mandates to February 7, 2021.239 Tennessee kept senior centers closed from April 29 to September 30, 2020 and reopened them capacity-limited on October 1, 2020; Indiana cancelled senior-center activities in every Red county from November 15, 2020 into the spring of 2021; Minneapolis closed adult day care from March 17 to July 24, 2020; Miami-Dade closed congregate meal sites from March 16 and adult day care from April 3 to September 26, 2020; and Vermont kept adult day programs closed under the Amended and Restated Executive Order 01-20, its release of June 17, 2020 recording that the senior-center reopening "does not mean Adult Day programs can resume."240 The residential function never left the federal conditions: QSO-20-23 from March 30, 2020, QSO-21-14 from February 10, 2021 and as revised June 3, 2021, § 483.460(a)(4) from May 21, 2021 and the OSHA standard from June 21, 2021; Florida's visitation ban ran from March 15, 2020 to March 22, 2021; Arizona's Executive Order 2020-22 from April 7, 2020 to April 1, 2021; New Hampshire's visitor prohibition from March 15, 2020 to June 11, 2021; Michigan's residential care orders from October 6, 2020 through the third quarter of 2021; and Washington's Proclamation 20-66 from August 7, 2020 through the emergency.241 The payer function never left Appendix K, whose amendments ran from start dates in March 2020 to six months after the public health emergency and, in Pennsylvania's final form, to May 11, 2023.242
The arithmetic
An adult day center whose participants were sent home in March 2020, whose staff were laid off or reassigned, whose van routes were cancelled and whose Medicaid units stopped, and which was permitted to reopen at 30 percent in July 2020 (Delaware), by phases in September 2020 (Ohio), at no more than 50 percent in September 2020 (California), on March 12, 2021 (Maryland) or on June 15, 2021 under protocols (New Jersey), had first to re-enroll participants whose families had made other arrangements, re-hire and re-train direct support staff in a labor market the Bureau of Labor Statistics described as short of workers through September 2021, rebuild transportation routes to the capacity the order allowed, and re-establish the referral relationships with hospitals and case managers that the visitation and discharge orders had interrupted. Each of those steps is a "delay" within Tri-State's definition, each was required because of the order that compelled the dismantling, and each ran into the quarters after the order lapsed. The broken-leg analogy fits the record exactly: an employer whose operation was ordered suspended through June 30 was not walking normally on July 1.
What was still in force when the general restrictions ended
When the general orders on the public ended between May and July 2021, the instruments on this industry did not: the OSHA standard, QSO-21-14, the vaccine-offering condition, Appendix K, § 9817, the HUD notices, § 3222 and the conveyance order in every State; Executive Directives 21-006 and 21-007 in New Jersey; the face-covering and exposure-control orders on congregate programs and shelters in Massachusetts, Colorado, North Carolina, New Jersey and Washington; the testing orders on adult day and group-home settings in Kansas and Colorado; the residential care order in Michigan; Proclamation 20-66 in Washington; Order 21-03-09-02 in Maryland; and, from July 26 to September 30, 2021, the vaccination and testing mandates of seventeen jurisdictions, nine of them naming this industry's settings and workers in terms.243 The suspension the 2020 orders caused continued because of them into the third quarter of 2021 along every one of the four pathways stated in the third-quarter analysis above; the orders in force in that quarter suspended the operation on their own terms; and the clause, read as written, asks nothing more.