The governmental orders by layer
The orders that reached this industry came in seven layers: the federal layer, which governed the industry's supplies, its prescribing, its customers' travel and its workforce's commute on every day of the six quarters; the fifty States and the District of Columbia, which suspended its elective work by name in six States, closed its grooming rooms in at least fourteen, confined its customers in more than forty, and wrote "veterinary clinic," "veterinary facilities" and "veterinary settings" into workplace infection-prevention rules, face-covering orders and waiting-room limits that ran, in Oregon, Virginia and California, through September 30, 2021; the largest metropolitan areas, whose health officers wrote grooming and daycare into their essential lists and re-imposed face-covering and exposure-control conditions on every premises in the summer of 2021; the sector regulators, federal and State, who rewrote the rules of veterinary practice so that the industry could operate without the in-person examination its own regulations require; the counterparties, whose orders reached the industry's customers, suppliers, schools and courts; the ecosystem, through which orders anywhere limited commerce everywhere; and the foreign governments, whose orders are the facts and circumstances in which the federal border and entry instruments operated. This section inventories each layer with exhibit identifiers. The quarters section applies them quarter by quarter.
The universe
The governmental response to COVID-19 was not a handful of orders; it 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, 42 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."21 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.22 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 2021.23 The COVID AMP database catalogued nearly 50,000 policy measures worldwide, including more than 20,000 at the United States national and State level, 95 percent of them issued before November 23, 2021, and approximately 8,000 issued by United States counties.24 Thirty-nine States issued statewide face-covering requirements, the airborne-transmission control most of them placed on every indoor premises with a business enforcement duty; on September 21, 2021, twenty-five jurisdictions kept emergency declarations in force and eleven kept statewide face-covering requirements.25 The Library's own counts are stated on the scale page as instruments indexed by The COVID Project; they are not, and are 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 layer
The second quarter of 2020
Every federal layer that reached this industry was at its maximum. The Families First Coronavirus Response Act's leave mandate became operational on April 1, 2020: every employer under 500 employees, which is every veterinary practice, kennel, grooming salon and shelter in the country, "shall provide ... paid sick time" to any employee unable to work because "[t]he employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19" or because "the school or place of care" of the employee's child "has been closed," and the implementing rule defined "quarantine or isolation order" to include the stay-at-home orders.26 The President delegated Defense Production Act priority and allocation authority over "all health and medical resources" on March 18, 2020, hoarding-prevention authority on March 23 and further authority on March 27; the Secretary of Health and Human Services designated fifteen categories of respirators, masks, gloves, gowns, ventilators and disinfectants as "scarce materials" on March 25, 2020, making their accumulation above reasonable demand a federal crime; and from April 7, 2020 the Federal Emergency Management Agency forbade the export of five categories of PPE without federal allocation, a rule extended on August 10 and December 31, 2020 to June 30, 2021.27 These are the orders that governed the market in which every veterinary practice buys its N95 respirators, surgical masks, gloves and gowns, and they are the recited premise of the State orders that suspended veterinary procedures to conserve that equipment for human care.28 The Food and Drug Administration's Center for Veterinary Medicine issued Guidance for Industry #269 on March 24, 2020, under which "FDA generally intends not to enforce the animal examination and premises visit VCPR requirements relevant to FDA regulations governing Extralabel Drug Use in Animals (21 CFR part 530) and Veterinary Feed Directive Drugs (21 CFR 558.6)," so that veterinarians could prescribe by telemedicine while the State orders closed their waiting rooms; the Drug Enforcement Administration told every registrant, a class that includes every veterinarian who dispenses a controlled substance, that it could prescribe by telemedicine (March 16), authorize early refills (March 20) and practice outside its registered State (March 25).29 The land borders with Canada and Mexico closed to non-essential travel at 11:59 p.m. on March 20, 2020 and were renewed monthly; the entry proclamations suspended entry from China, Iran, the Schengen Area, the United Kingdom, Ireland and Brazil; the State Department cancelled every routine visa appointment in the world from March 20; and the federal government moved its own workforce to maximum telework and directed agencies to "encourage [customers] to delay transactions which are not time-critical."30 The Cybersecurity and Infrastructure Security Agency's Essential Critical Infrastructure Workforce guidance, "advisory in nature" by its own words, named "[a]nimal agriculture workers to include those employed in veterinary health (including those involved in supporting emergency veterinary or livestock services)" from its first version of March 19, 2020, added "[w]orkers in animal shelters" in version 3.0, and named "[v]eterinary nurses, technicians, veterinarians, and other services supporting individuals and organizations with service animals" in version 4.1; every State closure order that let a veterinary practice operate did so by reference to this list, which is why the designation was the premise of the conditions the orders imposed and never an exemption from them.31 On April 28, 2020, after the Centers for Disease Control and Prevention had counted 4,913 infected workers in 115 meat and poultry plants in 19 States, the President made meat and poultry processing a Defense Production Act priority, the order that governed the plants to which this industry's agricultural customers send their animals.32
The third and fourth quarters of 2020
Nothing in the federal supply, travel or workforce layer changed and the health layer tightened. The FFCRA mandate ran the whole of both quarters and expired December 31, 2020; the FEMA export rule was extended on August 10 and again on December 31, 2020; the land-border prohibition was renewed on July 22, August 21, September 23, October 22, November 23 and December 22, 2020; the entry proclamations continued; and the Centers for Disease Control and Prevention ordered on September 1, 2020, effective September 4, that no landlord "shall evict any covered person from any residential property" in any jurisdiction without an equal moratorium, on pain of criminal fines, an order that governed the finances of this industry's customers and the leases of its premises.33 The CISA guidance was revised on August 18, 2020 and the State orders that incorporated "the most recent" version followed it.
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 suspensions without interruption and added South Africa; the Centers for Disease Control and Prevention's conveyance mask order took effect on February 1, 2021 "until further notice" ("Persons must wear masks over the mouth and nose when traveling on conveyances into and within the United States"; "A conveyance operator ... must require all persons onboard to wear masks for the duration of travel"), enforced by criminal fines, and the Transportation Security Administration's directives of January 31, 2021 required every transit agency, railroad, bus company, airline and airport to give notice that "Federal law requires wearing a mask," to refuse boarding and to remove violators; Executive Order 13991 required masks and distancing of every person "in Federal buildings or on Federal lands"; the inbound-testing order barred the introduction of any aircraft passenger from any foreign country without a negative test; and the land-border prohibition was renewed on January 19, February 23 and March 19, 2021.34 On March 11, 2021 the Secretary of Health and Human Services amended the PREP Act declaration to add "a ... veterinarian licensed or certified to practice under the law of any state who prescribes, dispenses, or administers COVID-19 vaccines" and "a ... veterinary student with appropriate training in administering vaccines" to the persons authorized to vaccinate, a federal redeployment of this industry's licensed workforce.35 The same day Congress re-enacted the Suspension Clause for the third and fourth quarters of 2021.36
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; the land-border prohibition was renewed on April 22, May 24 and June 23, 2021; the Transportation Security Administration extended the surface directive through September 13, 2021 by Security Directive 1582/84-21-01A, effective May 12, applied "including those already vaccinated"; the FEMA export rule ran to its expiry on June 30, 2021; the Centers for Disease Control and Prevention published on June 16, 2021 its suspension of the importation of dogs from more than one hundred countries, effective July 14, 2021; the Occupational Safety and Health Administration published its Healthcare Emergency Temporary Standard on June 21, 2021, a standard that governs "settings where any employee provides healthcare services or healthcare support services" to human patients and does not reach veterinary settings, and that is cited here only as the order on this industry's human-health counterparties; and the CDC extended its eviction moratorium on June 24 to July 31, 2021.37
The third quarter of 2021
The federal layer tightened. On July 1, 2021 the following were in force, stated from their texts: the conveyance mask order and Security Directive 1582/84-21-01A; the inbound-testing order; Proclamations 9984, 9992, 10143 and 10199; the land-border prohibition under the June 23 notifications, in effect "at 12 a.m. Eastern Daylight Time (EDT) on June 22, 2021" until "11:59 p.m. EDT on July 21, 2021"; the Title 42 order of October 13, 2020; the CDC eviction moratorium to July 31; Executive Order 13991 with the non-occupancy provisions of OMB Memorandum M-21-15 and M-21-25; the Department of Defense travel restrictions of March 15, 2021; the Defense Production Act delegations and the scarce-materials designation; FDA's Guidance for Industry #269 (guidance by its own legend, cited as the record of the compelled substitute); the DEA exceptions; the PREP Act Seventh Amendment; and the section 1135 waivers and the HHS telehealth enforcement discretion that governed the industry's human-health counterparties.38 Inside the quarter: the FDA's revocation of the emergency authorizations for decontaminated respirators took effect June 30 and for imported non-NIOSH-approved respirators on July 6, 2021, withdrawing the lawful basis for a large share of the respirators in the industry's supply; HHS extended the scarce-materials designation on July 7 to November 15, 2021; the CDC's dog-importation suspension took effect July 14; the public health emergency was renewed effective July 20; the land-border prohibition was renewed on July 22, August 23 and September 22, 2021; the Safer Federal Workforce Task Force reinstated masks in every federal building for all persons regardless of vaccination status in areas of substantial or high transmission on July 27-29, 2021 and required that employees and onsite contractors "must sign an attestation" of their vaccination status; the CDC replaced the Title 42 order without interruption on August 2 and ordered on August 3 that no landlord "shall ... evict any covered person from any residential property in any county or U.S. territory while the county or territory is experiencing substantial or high levels of community transmission," until that order was vacated on August 26; the agencies barred foreclosure-related evictions "[t]hrough September 30, 2021"; the President extended the Stafford Act cost share on August 17, reciting "the nationwide emergency declaration of March 13, 2020"; TSA issued Security Directive 1582/84-21-01B on August 20, effective September 14, 2021 to January 18, 2022; the President signed Executive Orders 14042 and 14043 on September 9, 2021, reciting that the public health emergency remained in effect; and the Office of Management and Budget published its determination under Executive Order 14042 on September 28.39 On September 30, 2021 every instrument named in this paragraph 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 agency eviction moratoria expired that day. The revocation of the entry proclamations and the opening of the land borders to vaccinated travelers came on November 8, 2021.40 A Government that was tightening its own workplace rules, renewing its border prohibitions, replacing its Title 42 order, extending its eviction moratoria, revoking the authorizations for the respirators this industry wears and suspending the importation of the dogs this industry's breeders and rescues place, 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 and the District of Columbia
The pattern
The industry's State regime had three layers, and this subsection states the analysis by region; the State table on this page carries the fifty-one rows. The first layer was the elective-procedure layer: six States suspended veterinary elective work in terms or by orders that reached every licensed health-care professional (Colorado, March 23 to April 26, 2020; Minnesota, March 23 to May 10, 2020; Oregon, March 23 to May 1, 2020; Michigan, April 2 to May 28, 2020; Indiana, April 1 to April 26, 2020; Utah, March 25 to April 21, 2020), and three of them replaced the suspension with a recommencement order with force of law that ran to April 16, 2021 (Colorado), May 27, 2021 (Minnesota) and June 30, 2021 (Oregon).41 The second layer was the stay-at-home and essential-designation layer: veterinary care was written into the stay-at-home orders of at least twenty States and the District of Columbia, most often in Illinois's words, "veterinary care and all healthcare services provided to animals," and the designation fixed the conditions under which the practice operated: curbside and owner-exclusion operation, PPE conservation, telemedicine, face-covering and screening controls named for "veterinary clinic," and waiting-room limits.42 The third layer was the grooming, boarding and shelter layer: pet grooming was closed as a personal service or as a business outside the essential designations in the spring of 2020 in at least fourteen States and reopened by appointment, curbside or capacity conditions between April 24 and June 22, 2020; New Mexico closed it a second time from November 19 to December 2, 2020; Colorado ran it at twenty-five percent under Level Orange and Red and closed it at Level Purple; boarding and shelters were designated essential in the States that named them and operated under the gathering caps and the travel collapse.43 Beneath every layer ran the general regime of each State: the stay-at-home order, the face-covering mandate with the business enforcement duty most States attached to it, the gathering cap, the telework directive, the winter re-tightening and the 2021 transition, each of which reached every veterinary, grooming, boarding and shelter premises as a business and a public indoor space. Every face-covering mandate named in the regional paragraphs that follow is described as what its text made it: one of the workplace infection-prevention and exposure-control requirements, or airborne-transmission controls, the issuing authority placed on every indoor premises, with the business-enforcement, screening, distancing and capacity conditions the same instrument attached where it did.
The West
Colorado's regime was State-set from March 10, 2020 through April 16, 2021 and never went dark before September 30, 2021: Executive Order D 2020 009 suspended "all voluntary or elective surgeries or procedures, whether medical, dental, or veterinary" from March 23 and directed PPE conservation across "veterinary, dental, construction, research, institution of higher learning, or other" sectors; Executive Order D 2020 020 suspended the in-person VCPR requirement of C.R.S. § 12-315-104(19)(b) so that veterinarians "must be able to use telehealth services whenever possible"; D 2020 045 and Public Health Order 20-29 permitted resumption from April 27, 2020 only under § V, "Veterinary Facilities" (PPE adequacy, minimizing veterinarian and staff contact, zoonotic precautions, reassessment every two weeks), amended thirteen times to April 9, 2021 and superseded April 16, 2021; Public Health Order 20-28 defined Personal Services to include "dog grooming" and reopened them May 1, 2020 at ten or fewer or fifty percent by appointment; the Second Amended PHO 20-36 placed the Front Range in Level Red from November 20, 2020, confined Limited Healthcare Settings "ordered by a medical, dental or veterinary practitioner" to PHO 20-29's regime at ten percent occupancy, cut personal services including dog grooming to twenty-five percent, and listed "[a]nimal shelters, animal boarding services, animal rescues, ... animal grooming" among Critical Businesses; the statewide face-covering order, one of the exposure-control requirements the State placed on every indoor public space, with a no-service-to-the-unmasked duty on every business, ran from July 17, 2020 to June 1, 2021; and PHO 20-38, amended seven times through September 30, 2021, kept an employer implementation duty and setting-specific face-covering duties through the third quarter of 2021.44 Minnesota amended Executive Order 20-09 by Executive Order 20-17 on March 23, 2020 so that the postponement ran to every procedure "whether medical, dental, or veterinary, that utilize[s] PPE or ventilators," from 5:00 p.m. March 23 "indefinitely," with veterinary urgency criteria; Executive Order 20-16 ordered every "veterinary" facility to inventory its PPE, ventilators, respirators and anesthesia machines by March 25 and refrain from non-critical use; Executive Order 20-20 named "[a]nimal shelters and veterinarians" critical and directed that "[a]ll workers who can work from home must do so"; Executive Order 20-33 provided that "[w]orkers supporting pet grooming businesses are not exempt"; Executive Order 20-48 permitted pet grooming from May 4, 2020 "to the extent that they can adhere to the guidelines" for curbside and drop-off operation; Executive Order 20-51 rescinded the postponement at 11:59 p.m. May 10, 2020 and imposed written plan, screening and owner-consent requirements on every facility offering PPE-utilizing procedures "whether veterinary, medical, or dental" through May 27, 2021; a face-covering requirement, one of the airborne-transmission controls the State placed on every indoor business, with a business enforcement duty and a $25,000 penalty, bound every indoor business from July 25, 2020 to May 14, 2021; and the peacetime emergency ended by statute at 11:59 p.m. July 1, 2021, the first day of the third quarter.45 Oregon's Executive Order 20-10 cancelled every elective and non-urgent PPE-utilizing procedure at "veterinary clinics" no later than March 23, 2020 or rescheduled it "no earlier than June 15, 2020" and ordered surplus PPE surrendered to the State by March 27; Executive Order 20-12, "Stay Home, Save Lives," ordered that "[w]ork in offices is prohibited whenever telework and work-at-home options are available"; Executive Order 20-22 permitted procedures at "veterinary clinics" from May 1, 2020 only in compliance with Oregon Health Authority guidance and ran to 12:01 a.m. June 30, 2021; Oregon OSHA's temporary rule of November 6, 2020, effective November 16, carried Appendix A-10, "Veterinary Care," mandatory workplace guidance for "veterinarians licensed under ORS 686, and to their assistants and other employees," made permanent May 4, 2021; Administrative Order 5-2021 of June 30, 2021 removed A-10's mask and distancing provisions "leaving only the personal protective equipment provisions"; and Administrative Order 10-2021 of August 13, 2021 restored Appendix A-10 as "Veterinary Clinics" ("veterinary employers must provide and ensure the use of personal protective equipment") on the day the Oregon Health Authority reinstated universal indoor face coverings in every public and private workplace, an airborne-transmission control enforced at $500 a day.46 California designated "[w]orkers supporting veterinary hospitals and clinics" essential under Executive Order N-33-20; its State Public Health Officer required face coverings from June 18, 2020, one of the airborne-transmission controls the State placed on every health-care setting, when "[o]btaining services from the healthcare sector in settings including ... veterinary clinic"; its Department of Consumer Affairs waived the in-person examination rule for veterinary telemedicine within an existing VCPR and extended refill periods from June 4, 2020, an order extended nine times to October 31, 2021, and ordered on March 30, 2021 that veterinarians were authorized to order and administer COVID-19 vaccines; Cal/OSHA's section 3205 bound every veterinary employer from November 30, 2020 and was readopted June 17, 2021; the Regional Stay at Home Order treated pet grooming as a "limited service" in Los Angeles and Long Beach from December 6, 2020; the State's general restrictions ended June 15, 2021 with face coverings for the unvaccinated and mega-event rules kept; and the counties reinstated universal indoor face coverings from July 17, 2021, Sacramento's with an employer enforcement duty.47 Washington designated "[w]orkers supporting veterinary hospitals and clinics" essential, placed pet grooming in Phase 2 of Safe Start and, in Modified Phase 1, at "occupancy limited to 25% of building occupancy," required a face covering of every employee from June 8 and of every person from June 26, 2020 and forbade every business to serve an unmasked customer from July 7, cut personal services to twenty-five percent from November 17, 2020, ended its caps June 30, 2021, reinstated universal indoor face coverings from August 23, 2021 and prohibited every business from admitting an unmasked person, and, in Proclamation 21-14 of August 9, 2021, expressly excluded "[v]eterinary health care settings" from its health-care vaccination mandate, which shows the regulator knew the industry and drew its line deliberately.48 Hawaii suspended HRS § 471-10 from April 25, 2020 "to the extent necessary to enable veterinarians to engage in telehealth" without a previously existing VCPR or a physical examination of the patient, carried the suspension in every proclamation through the Twenty-First (June 7, 2021; to August 6, 2021), reopened "Pet Grooming Services" on May 5, 2020 by appointment only with customers waiting "outside the facility (e.g., in cars)," imposed a Statewide Face Covering Requirement from November 16, 2020, an airborne-transmission control on every indoor premises in the State, that ran through the third quarter of 2021 and beyond, quarantined every arriving passenger under Safe Travels through the period, and by Executive Order 21-06 of September 1, 2021 named "veterinarians licensed pursuant to chapter 471" among the health care professionals rendering assistance; no general business restriction in Hawaii ended before September 30, 2021.49 New Mexico's March 23, 2020 order named "emergency veterinary and livestock services" essential and ordered every business outside the essential designations to "reduce the in-person workforce at each business or business location by 100%"; its June 15, 2020 order named "[v]eterinary and livestock services, animal shelters, and facilities providing pet adoption, grooming, daycare, or boarding services" essential; its Amended Public Health Emergency Order of November 18, 2020 provided that "[a]nimal grooming services cannot operate under any circumstances" from November 19 to December 2, 2020; its county color-tier framework ran to June 30, 2021; its June 30, 2021 order kept masks for the unvaccinated and made COVID-Safe Practices mandatory for "all businesses, establishments, and non-profit entities" under a $5,000 penalty; and it reinstated universal indoor face coverings from August 20, 2021 alongside the mandatory COVID-Safe Practices.50 Nevada listed "[v]eterinary services" essential, required a face covering of every person in public from 11:59 p.m. June 25, 2020, one of the exposure controls it placed on every business premises, ended its capacity limits June 1, 2021 and reinstated universal indoor face coverings in every county of substantial or high transmission from July 30, 2021 by Directive 047.51 Utah's UPHO 2020-03 reached "all licensed health-care professionals and all licensed health-care facilities" from March 25, 2020 and was replaced from April 21 by protocols on every "covered healthcare provider," defined to include "veterinarian," to May 15, 2020 (masks within six feet, one companion, screening, waiting rooms cleared); Summit County recited that "urgent medical, dental, and veterinary procedures are restricted per Utah" order; Wasatch County named "pet supply and veterinary" essential; the statewide face-covering mandate, an airborne-transmission control on every indoor public space, ran from November 9, 2020 to April 10, 2021 and every remaining restriction ended May 4, 2021 under House Bill 294.52 Alaska named "[v]eterinary care and healthcare services provided to animals" essential, required "all patients, providers, hospitals and surgical centers" to postpone non-urgent or elective procedures for three months from March 19, 2020, and listed "[v]eterinarians" among the providers within Health Mandate 015's resumption conditions from April 20, 2020.53 Arizona, Idaho, Montana and Wyoming reached this industry through their general orders rather than by a veterinary-specific instrument: Arizona's essential list of March 23, 2020 and stay-home order of March 31 to May 15, 2020; Idaho's Order to Self-Isolate of March 25, 2020; Montana's Stay at Home Directive naming "veterinary and animal health services, animal shelters, rescues, shelters, kennels, and adoption facilities" essential, its face-covering directive of July 15, 2020 and the directive of November 17, 2020 that made the face-covering requirement statewide from November 20, 2020 to February 12, 2021, alongside group-size and capacity limits that ran to January 15, 2021; and Wyoming's closure orders of March 19-25, 2020 and face-covering order of December 9, 2020 to March 15, 2021, an airborne-transmission control on every indoor public space, each of which reached every veterinary, grooming and boarding premises as a business; their grooming regimes are described here by category from the State collections.54
The Midwest
Michigan's Governor issued the only stand-alone veterinary order located in the fifty States, Executive Order 2020-34 of April 2, 2020, effective 5:00 p.m. that day: "all veterinary facilities must implement a plan to temporarily postpone all in-person non-essential veterinary services"; "all veterinary services, essential and non-essential, must be performed by telemedicine to the fullest extent possible"; PPE "that could be used for the care of humans must be minimized to the fullest extent possible"; "non-essential veterinary services" defined as all non-agricultural services other than those necessary to preserve life, treat serious pain, euthanize or treat or prevent zoonotic disease; "a willful violation of this order is a misdemeanor"; rescinded as of 11:59 p.m. May 28, 2020 by Executive Order 2020-96, which recited that the veterinary facilities had been "required ... to implement plans to postpone" their services and made "[o]utpatient health-care facilities, including veterinary offices," subject to the workplace safety rules of Executive Order 2020-91.55 Michigan's stay-home orders let residents leave home only for "veterinary services that, in accordance with a duly implemented ... veterinary services postponement plan, have not been postponed"; the MIOSHA Emergency Rules of October 14, 2020 required "outpatient health-care facilities, clinics, primary care physician offices, dental offices, and veterinary clinics" to post signs, screen patients and limit waiting rooms, to June 22, 2021; and the MDHHS Gatherings and Face Mask Orders from October 29, 2020 limited gatherings in waiting rooms at "veterinary clinics" to June 22, 2021.56 Illinois wrote "veterinary care and all healthcare services provided to animals" and "animal shelters, rescues, shelters, kennels, and adoption facilities" into Executive Order 2020-10 of March 20, 2020, left pet grooming outside the essential definition until Executive Order 2020-32 added "grooming services provided to animals" effective May 1, 2020, required face coverings in every business from May 1, 2020 to May 16, 2021, an airborne-transmission control carrying a business duty, and reinstated universal indoor face coverings from August 30, 2021 by Executive Order 2021-20, restated September 3 by Executive Order 2021-22 with an employer duty.57 Indiana's Executive Order 20-13 directed "all health care providers, whether medical, dental or other" to cancel elective and non-urgent procedures from April 1, 2020, applied to veterinary elective procedures, until Executive Order 20-22 permitted resumption at 11:59 p.m. April 26, 2020; Executive Orders 20-18 and 20-22 provided that pet grooming "may occur at a pet salon or store, or by mobile unit; however, no pet grooming shall be provided to customers inside any home at this time"; Executive Order 20-26 of May 1, 2020 named "veterinary care and all healthcare services provided to animals" essential and removed the procedure restrictions on "veterinary practices"; a statewide face-covering requirement, an airborne-transmission control on every indoor public space, ran from July 27, 2020 to April 6, 2021; and the emergency ran to March 3, 2022 with the Department of Health's control measures given executive-order force from August 1, 2021.58 Ohio's Stay at Home Order of March 22, 2020 provided that "Healthcare and Public Health Operations also includes veterinary care and all healthcare services" and named "animal shelters, rescues, shelters, kennels, and adoption facilities" essential; Wisconsin's Safer at Home order of March 24, 2020 carried the same clause with the addition that "[n]on-essential veterinary care should be avoided" and named boarding and kennels essential, until the Wisconsin Supreme Court invalidated its extension on May 13, 2020; Kansas's Douglas County stay-home order provided that "Healthcare Operations also includes veterinary [care]," and Executive Order 20-52 of July 2, 2020 required every person to wear a face covering, one of the airborne-transmission controls the State placed on its indoor public settings, when "[o]btaining services from the healthcare sector in settings, including but not limited to, a hospital, pharmacy, medical clinic, laboratory, physician or dental office, veterinary clinic, or blood bank," from July 3, 2020 to March 31, 2021, with the Sedgwick County and Wichita orders carrying the same words; Missouri's St. Louis County named "animal shelters or animal care management, including boarding, grooming, pet walking and pet sitting" essential (Ex. MET-STL-077), and the Governor's Executive Order 20-04 suspended the State's telemedicine statutes from March 18, 2020, a suspension carried to August 27, 2021 by Executive Order 21-07 and re-imposed through December 31, 2021 by Executive Order 21-09 (Ex. MO-002; Ex. MO-018; Ex. MO-020); Nebraska, North Dakota, South Dakota and Iowa closed personal services in the spring of 2020 without naming pet grooming, and Brookings, South Dakota required face coverings from February 9, 2021, one of the airborne-transmission controls the city placed on its health-care settings, when "obtaining services from the healthcare sector in settings, including but not limited to, a hospital, pharmacy, medical clinic, laboratory, physician or dental office, veterinary clinic, or blood bank."59
The South
Kentucky's Cabinet for Health and Family Services closed every public-facing business on March 17, 2020 excepting "veterinary clinics and pet stores," listed pet stores as life-sustaining retail on March 22, permitted "[p]et care, grooming, and boarding businesses" to reopen May 11, 2020 under binding Healthy at Work requirements (customers "must remove their pet's leash and collar and deliver their pet either curbside, in a crate, or in an entry room to avoid interaction") that ran to June 11, 2021, and, by the General Assembly's joint resolutions of March 30 and September 7, 2021, ratified and extended to January 15, 2022 the Board of Veterinary Examiners Order of April 16, 2020.60 Florida incorporated the Miami-Dade essential list ("Veterinarians and pet boarding facilities") into its Safer at Home order of April 1, 2020; its Department of Business and Professional Regulation suspended on March 27, 2020 "[a]ny restriction in chapter 474, Florida Statutes, or chapter 61G18, Florida Administrative Code, which would prohibit active Florida licensed veterinarians in good standing from practicing telemedicine on their patients"; Palm Beach County named "[v]eterinarians, mobile pet groomers and pet boarding facilities" essential; the State's general restrictions ended September 25, 2020, its local layer was suspended May 3, 2021 and voided July 1, 2021, and its third-quarter 2021 instruments were the statutory bar on vaccination-proof conditions and the school orders.61 Maryland's Office of Legal Counsel named "[v]eterinary hospitals, clinics, and kennels" and "[p]et supply stores" essential on March 23, 2020; its Department of Health's elective-procedure order of the same day reached practitioners licensed under the Health Occupations Article and did not name veterinarians, who are licensed under the Agriculture Article; Anne Arundel County permitted pet grooming from May 15, 2020 only "by appointment" at one customer per 150 square feet and fifty percent; face coverings, an airborne-transmission control the State placed on every indoor premises, ran from April 18, 2020 in retail and from July 31, 2020 everywhere indoors to May 15, 2021; and the emergency ran to August 15, 2021.62 Delaware named "[a]ny other workers or support staff related to the delivery of medical, dental, veterinarian, or similar services" essential and required face coverings from April 28, 2020 at "facilities providing veterinary care and similar healthcare services for animals," a requirement carried, with the business duty to exclude isolated and quarantined employees, to the Twenty-Ninth Modification and in force to July 12, 2021, twelve days into the third quarter.63 Virginia's Department of Labor and Industry adopted on July 15, 2020, effective July 27, an Emergency Temporary Standard binding "every employer, employee, and place of employment" that classified "veterinary settings" among "medium" exposure workplaces subject to mandatory infection-control duties, made it permanent effective January 27, 2021 and amended it effective September 8, 2021; the standard bound every veterinary practice, kennel and grooming salon in the Commonwealth on every day from July 27, 2020 through September 30, 2021.64 Tennessee's Executive Order 22 named "veterinary care and all health care services provided to animals" essential; Executive Order 36 of May 12, 2020 suspended "[i]nspections of veterinary facilities" by the Department of Health; Sumner County named "[v]eterinary and pet supply business and services" essential; Knox County issued Phase Two guidelines for "[p]et grooming, daycare programs and veterinary clinics" from May 26, 2020.65 Texas's GA-09 ordered "all licensed health care professionals and all licensed health care facilities" to postpone every procedure "not immediately medically necessary" from March 22, 2020, GA-14 incorporated the CISA list from April 2, and the counties wrote the industry into their essential lists: Dallas County ("Animal Care Services. Animal shelters, veterinary care, and pet food and supply stores. Grooming, if necessary for the health and wellbeing of the animal. Pet daycare, but only for employees of Essential Businesses") and Denton County ("pet grooming, pet boarding" among essential professional services); GA-29 required a face covering of every person "inside a commercial entity" from July 3, 2020 to March 10, 2021, one of the exposure controls the State placed on every business premises; and GA-38 of July 29, 2021, under a disaster renewed August 29, 2021, re-imposed with force of law daily reporting by "[e]very public or private entity" that tests and the vaccination-proof prohibitions.66 The District of Columbia's Mayor's Order 2020-053 provided that "Health Care Operation" "also includes veterinary care and all health care services provided to animals," closed every business outside its essential list, ordered every business to "take all reasonable steps necessary for employees to work remotely," required face coverings, an airborne-transmission control on every business premises, of essential-business employees and customers from May 16, 2020 and of everyone from July 22, 2020, lifted its capacity limits May 21 and June 11, 2021, and re-imposed universal indoor face coverings from July 31, 2021 by Mayor's Order 2021-097 with $1,000 fines, the airborne-transmission control it reinstated on every indoor premises.67 Louisiana's stay-at-home proclamation of March 22, 2020 reduced every non-CISA business to "minimum contact with members of the public," required a face covering of every individual in every building open to the public from July 13, 2020 to April 27, 2021, one of the exposure controls the State placed on every business premises, with citations to businesses that failed to enforce it, ended its general rules May 26, 2021, and reinstated a statewide indoor face-covering mandate for every person five and older from August 4, 2021 by Proclamation 137 JBE 2021, renewed by 167 JBE 2021 (August 31) and 181 JBE 2021 (September 28) to October 27, 2021.68 Alabama listed "veterinarians," "veterinary services" and "kennels, animal shelters" among "Essential Businesses" in its Stay at Home Order of April 3, 2020; West Virginia reopened "dog groomers" with hair salons by appointment from May 4, 2020; Oklahoma's Essential Industries List of April 1, 2020 placed "Veterinary Services" under Healthcare and Social and its OURS Plan provided that from April 24, 2020 "pet groomers can reopen for appointments only"; North Carolina's Executive Order 138 referred to travel to a "veterinarian"; Georgia, Mississippi, South Carolina and Arkansas reached this industry through their general orders: Georgia's shelter-in-place order of April 3, 2020 with its Critical Infrastructure defined by the CISA guidance then naming veterinary health; Mississippi's shelter-in-place order, Executive Order 1466, signed April 1 and effective April 3, 2020, and its postponement of every procedure "not immediately medically necessary" by "all licensed health care professionals" from April 10, 2020; South Carolina's closures of April 1 and Home or Work order of April 7, 2020; and Arkansas's directive postponing "[p]rocedures, testing, and office visits that can be safely postponed" from April 3, 2020 and its face-covering mandate of July 20, 2020 to March 31, 2021, an airborne-transmission control on every indoor public space, each of which reached every premises of the industry as a business.69
The Northeast
New Jersey's Executive Order 109 of March 23, 2020 ordered "[a]ny business or non-hospital health care facility, including but not limited to dental facilities, construction facilities, research facilities, office-based healthcare or veterinary practices, and institutions of higher learning, in possession of PPE, ventilators, respirators, or anesthesia machines" to inventory those supplies and report them to the State by 5:00 p.m. March 27, 2020, and authorized the Director of the Division of Consumer Affairs "to issue orders restricting or expanding the scope of practice for any category of healthcare professional or veterinarian licensed by a board in the Division of Consumer Affairs, including but not limited to, orders restricting elective surgeries, procedures, and examinations"; Executive Order 107 confined every resident to home from 9:00 p.m. March 21, 2020, closed every non-essential premises and ordered every business to "accommodate their workforce, wherever practicable, for telework," a mandate that ran to June 4, 2021; pet grooming was closed as non-essential to June 22, 2020; Executive Order 192 bound every worksite to distancing, masks and daily health checks from November 5, 2020 and was carried past June 4, 2021 by Executive Orders 242 and 243; and the State of Emergency ran through September 30, 2021 and beyond.70 New York's PAUSE orders of March 20-22, 2020 ordered every business to "utilize, to the maximum extent possible, any telecommuting or work from home procedures" and to cut its in-person workforce by 100 percent outside the essential list, and Empire State Development's guidance permitted "animal shelters and animal care including dog walking, animal boarding and pet grooming but only to the extent necessary to ensure animal health," a clause carried in every version to June 15, 2021; face coverings, an airborne-transmission control on every person in public and on every business, bound every person from April 17, 2020; the Department of Health's Subpart 66-3 (face coverings for unvaccinated persons and employees, "Businesses must provide, at their expense, such face coverings") was readopted June 23, 2021 and ran to August 27, 2021, when 10 NYCRR 2.60 and the Commissioner's Determination on Indoor Masking replaced it; and the HERO Act required every private employer to adopt an airborne infectious disease exposure prevention plan by August 5, 2021 and to activate it on the Commissioner's designation of September 6, 2021.71 Pennsylvania's orders of March 19, 2020 closed every place of business that was not "life sustaining" by NAICS code, listing "Other Professional, Scientific, and Technical Services" (NAICS 5419, which includes 541940 veterinary services) "Yes" and "Other Personal Services" (NAICS 8129, which includes 812910 pet care) "No"; its Department of State waived the telemedicine restrictions for every health-licensing board's licensees, including "Veterinary Medicine," on March 18, 2020, a waiver the General Assembly carried to September 30, 2021 by Act 21 of 2021 and to March 31, 2022 by Act 73 of 2021 with a finding that the suspensions were "in effect on September 30, 2021"; the Worker Safety Order bound every open business from April 19, 2020 to face coverings, screening and fifty percent occupancy; the Secretary of Health's Order Requiring Universal Face Coverings of July 1, 2020 and Updated Order of November 17, 2020, effective November 18, the companion of that workplace regime, required face coverings when "obtaining services from the healthcare sector in settings including, but not limited to, a hospital, pharmacy, medical clinic, laboratory, physician or dental office, veterinary clinic, or blood bank," to June 28, 2021; and the mitigation orders made telework mandatory ("Unless impossible, all businesses must conduct their operations remotely") from July 16, 2020 to April 3, 2021.72 Maine's Department of Economic and Community Development listed "Dog Grooming" in the non-essential column on April 3, 2020, reopened it May 1, 2020 under a DECD checklist enforceable "in the same manner as an Executive Order," and Executive Order 35 FY 19/20 of April 6, 2020 suspended enforcement of "Provisions of Certain Licensing Statutes and Rules in Order to Facilitate Health Care and Veterinary Care," issued emergency and reactivated licenses and provided that "[a]ny veterinarian licensed under this section may provide veterinary medicine services in-person in Maine or across state lines into Maine using telemedicine," with § I(A) extended to August 30, 2021 by Executive Order 40 FY 20/21; Maine's telework mandate ("until further notice, all businesses and operations shall to the extent practicable continue to have their employees work remotely") ran from May 31, 2020 to June 30, 2021.73 Massachusetts closed pet groomers with the businesses outside its essential list from March 24, 2020 and reopened them "[b]eginning May 25, 2020" under mandatory workplace safety rules, required face coverings of every person from May 6, 2020 to May 29, 2021, one of the exposure controls it placed alongside its mandatory workplace safety rules, and cut offices to twenty-five percent from December 26, 2020; Connecticut's Executive Order 7G closed personal services from March 20, 2020 to June 2020 and its emergency ran to February 15, 2022; New Hampshire's Executive Order 17 named "[a]nimal agriculture workers to include those employed in veterinary health" essential; Rhode Island's Department of Business Regulation listed "Pet supply stores" among critical retail and "Dog Groomers, dog day care, dog walkers" in its list; and Vermont's Addendum 6 named "veterinarians" essential and Addendum 10 permitted "pet care operators" to resume from April 20, 2020 only "so long as no more than 2 persons ... are present at one time."74
The winter re-tightening
Every region re-tightened between mid-October and late December 2020, and the instruments reached this industry in terms: Michigan wrote "veterinary clinics" into MIOSHA's rules of October 14 and MDHHS's waiting-room limits of October 29; Oregon OSHA wrote "Veterinary Care" into Appendix A-10 effective November 16; Colorado confined veterinary settings to a ten percent regime and cut dog grooming to twenty-five percent from November 20; New Mexico closed grooming outright from November 19 to December 2; Pennsylvania's Updated Face Coverings Order effective November 18 kept "veterinary clinic" and its November 23 order made telework mandatory "[u]nless impossible" from November 27; California's Regional Stay at Home Order of December 3 made grooming a "limited service" and offices remote; and every State's gathering caps fell to ten or a single household, which closed the training class and the adoption event.75 On January 1, 2021 every State that had re-tightened in the autumn of 2020, among them every State of the Northeast, Michigan, Illinois, Minnesota, Colorado, New Mexico, California, Oregon and Washington, was under a statewide instrument at least as restrictive as its June 30, 2020 regime; Iowa, North Dakota, Kansas, Utah, Montana, Wyoming, Hawaii and New Hampshire were under statewide face-covering mandates, airborne-transmission controls on every indoor public space, where none had stood on June 30, 2020; and the States whose statewide business rules had ended in 2020 (Florida, September 25; Tennessee, September 30; Alaska, May 22; Wisconsin, May 13; Missouri, June 15; South Dakota, April 28) carried the quarter through the face-covering, emergency, county and municipal instruments the State table on this page lists.
The 2021 transition and the preemption States
The general regimes ended on dates that ran from March 10, 2021 (Texas) through July 1, 2021 (New Mexico), with Hawaii never ending before September 30, 2021; the industry-specific instruments ended on their own dates: Colorado's PHO 20-29 on April 16, 2021; Minnesota's EO 20-51 on May 27, 2021; Kentucky's pet-care requirements on June 11, 2021; Michigan's MIOSHA rules and MDHHS orders on June 22, 2021; Pennsylvania's face-covering order naming veterinary clinics on June 28, 2021; Oregon's EO 20-22 and the face-covering and distancing provisions of Appendix A-10 on June 30, 2021; Delaware's face-covering and employee-exclusion requirements at veterinary facilities on July 12, 2021; Hawaii's § 471-10 suspension on August 6, 2021; Maine's § I(A) on August 30, 2021; and the California, Pennsylvania, Kentucky and Virginia regimes not at all before September 30, 2021.76 Six Southern States preempted local orders by clause, Arizona did so from March 23, 2020, Texas barred local mask and vaccination mandates from March 10 and July 29, 2021, Florida suspended and then voided its local orders on May 3 and July 1, 2021, and Kansas, Montana and Utah subjected local health orders to legislative control in 2021; in each of those States the 2021 instrument is itself an order of an appropriate governmental authority in force in the third quarter of 2021 governing what employers and localities could require, and the State's own third-quarter 2021 orders (Texas GA-38; Florida chapter 2021-8; Georgia's Economic Recovery orders; Arizona's Executive Order 2021-16 of July 2, 2021 carrying six orders to September 29, 2021 (Ex. AZ-044)) carried the quarter.77 No other State barred a stricter local order, and the metropolitan instruments of the next subsection ran alongside the State's in every one.
The standing duties
Beneath every layer of this section lay standing law that bound every veterinary practice, kennel, grooming salon and shelter every day of the six quarters: the communicable-disease and workplace-safety statutes, the offenses punishing disobedience of health and emergency orders, and the liability shields that protected only a complying business. Each is an order from an appropriate governmental authority on the Suspension Clause's own terms: 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 such an authority. The three layers are stated for eight principal States; the fifty-one-State treatment is at Nothing was voluntary.78
The first layer is the orders' own operating conditions; their verbs are commands. Michigan ordered that "all veterinary facilities must implement a plan to temporarily postpone all in-person non-essential veterinary services," and on its rescission placed every veterinary office under the safeguards every in-person business "must, at a minimum" adopt.79 Colorado let elective veterinary work resume only under the "Veterinary Facilities" section of Public Health Order 20-29, and Public Health Order 20-28 provided that "Employers and sole proprietors shall take all of the following measures within the workplace to minimize disease transmission ...."80 Oregon permitted veterinary procedures only in compliance with Health Authority guidance, which its order made public health law; Minnesota required of every business a Preparedness Plan implementing "Minnesota OSHA Standards and MDH and CDC Guidelines."81 California commanded that "People in California must wear face coverings" when "Obtaining services from the healthcare sector." Pennsylvania authorized in-person operations "provided that the businesses fully comply with all substantive aspects of" the Secretary's safety orders; Virginia let businesses reopen "provided such businesses comply with the Guidelines for All Business Sectors," which begin "Establishments must either implement the following mandatory requirements or close"; and Texas provided that "Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy of the establishment."82 A measure the Service calls "beyond the order" was, in each of these eight States, the order's own condition of operating.
The second layer is the standing law that commanded the same conduct before the first order and after the last. 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," with a Class B misdemeanor for knowing refusal to perform or allow the control measures and the emergency act's offense recited in every general order.83 Michigan made violation of a department rule or order a misdemeanor; Colorado made it "unlawful for any person, association, or corporation, and the officers thereof" to "willfully violate, disobey, or disregard" a lawful public-health order; Oregon, Minnesota and California punished disobedience of their emergency and health orders as a misdemeanor; Pennsylvania commanded its health authorities to "carry out the appropriate control measures" and charged violations of its closure orders as offenses; and Virginia made willful violation of any order of the Board or Commissioner a Class 1 misdemeanor, with a civil penalty of up to $25,000 for each violation of a court order enforcing it.84
Each of these employers owed the safe-workplace duty. Section 5(a)(1) of the Occupational Safety and Health Act bound every private employer in Colorado, Pennsylvania and Texas: "Each employer ... shall furnish to each of his employees employment and a place of employment which are free from recognized hazards," and OSHA cited employers under it from September 10, 2020.85 Texas adds Labor Code section 411.103's command of "a place of employment that is reasonably safe and healthful for employees," with "methods of sanitation and hygiene" and "all other actions reasonably necessary"; Pennsylvania adds its General Safety Law; Michigan, Oregon, Minnesota, California and Virginia state the duty in their occupational-safety acts.86 Six of the eight wrote the pandemic duty into a rule or order with the force of law: Virginia's standard classifying "veterinary settings," from July 27, 2020 through September 30, 2021; Michigan's MIOSHA Emergency Rules naming "veterinary clinics"; Oregon OSHA's rule with its veterinary appendix; Cal/OSHA's section 3205; Pennsylvania's Worker Safety Order; and Minnesota's Preparedness Plan orders, whose guidance told businesses that "Unless clearly indicated that an action included in the guidance is recommended, businesses should understand that the action is required if applicable to their business."87 The safe-workplace statute had no COVID-19 content until the health authorities said what a safe workplace required; from that day distancing, screening, sanitation and face coverings, the workplace infection-prevention and exposure-control requirements, were the statute's command as well as the order's.
The third layer is the liability shields. Texas protects a business from a pandemic-exposure claim unless the claimant establishes 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 actions commenced from March 13, 2020; Michigan immunized "[a] person who acts in compliance with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19," and its occupational-safety act repeats the condition for exposures after March 1, 2020.88 The legislatures that enacted no business shield left compliance as the standard of care by other means: California's bill died, leaving the Evidence Code's presumption of negligence from violation of a statute or regulation; Colorado postponed three bills, each premised on compliance with public health guidelines; Oregon shielded schools alone, and only when "operating in compliance with COVID-19 emergency rules"; Minnesota enacted none; Pennsylvania's Governor vetoed House Bill 1737 because "[p]roviding immunity for a business that does not rigorously comply with public health orders does not ensure the safety of the public"; and Virginia shielded health-care providers only.89 In each form the premise is the same: compliance was what a business owed. A veterinary practice that took its customers curbside, screened at the door, distanced its waiting room and masked its staff was not choosing; it was complying, and the statutes, orders and shields are the commands that made it so.
The largest metropolitan areas
The metropolitan health officers wrote this industry into their essential lists and re-imposed conditions on its premises in the summer of 2021: universal indoor face coverings, the airborne-transmission control each reinstated first, with the entry, employer-enforcement, proof-of-vaccination and gathering conditions that accompanied them in the jurisdictions named below. Dallas County's Stay Home Stay Safe order permitted "[g]rooming, if necessary for the health and wellbeing of the animal" and "[p]et daycare, but only for employees of Essential Businesses," and from August 11, 2021 Dallas County required face coverings in every commercial entity, school and child-care center under an order the Supreme Court of Texas stayed in part and the county continued to apply as policy; Denton County listed "pet grooming, pet boarding" among essential professional services; Austin, Travis County and Bexar County referenced veterinary services in their stay-home orders and re-imposed face coverings in schools, colleges and public facilities from August 10-15, 2021; Harris County's Local Health Authority ordered universal face coverings in every school and licensed child-care center from August 12, 2021.90 The City of Los Angeles named "veterinary care and pet day care providers (excluding pet grooming and training)" essential in its Safer at Home order; Los Angeles County's Blueprint orders made pet grooming and dog walking "Limited Services" at fifty percent indoor occupancy with posted protocols; Long Beach's Regional Stay at Home Order of December 6, 2020 treated "grooming, walking, and training services for animals/pets" as limited services; and Los Angeles County, the City, Long Beach and Pasadena reinstated universal indoor face coverings from July 17 and July 22, 2021 and never lifted them before September 30, 2021.91 San Francisco permitted "dog grooming" as a service not requiring close customer contact from July 13, 2020 and, with the seven other Bay Area jurisdictions, reinstated indoor face coverings for everyone from August 3, 2021, adding proof-of-vaccination requirements for indoor dining, fitness and large events from August 20; Sacramento County permitted "[p]et grooming" with modifications from May 22, 2020 and re-imposed indoor face coverings, with an employer enforcement duty, from July 30, 2021; San Diego County's isolation and quarantine orders ran the whole of the third quarter of 2021.92 King County's Phase 2 application of June 15, 2020 provided that "[a]ll pet grooming services ... are subject to Phase 2 guidance," which restricted customer occupancy to fifty percent; Seattle's Mayoral Directive #9 of August 9, 2021 made vaccination a condition of City employment from October 18 and extended City telework through mid-October 2021 (Ex. MET-SEA-018); the King County Executive ordered the same of every Executive Branch employee on August 10, 2021 (an order recited in the Executive's releases, Ex. MET-SEA-024; Ex. MET-SEA-027); and the King County Local Health Officer ordered every person to wear a face covering in every indoor public space and at every outdoor event of 500 or more from September 7, 2021 (Ex. MET-SEA-002).93 Honolulu's Emergency Order 2020-09 of April 29, 2020 permitted "mobile pet grooming" as a no-contact mobile service, a condition carried through the Honolulu orders to Emergency Order 2021-13 of September 17, 2021, whose Exhibit B fixed the "Required Conditions" of every designated business on Oahu; Honolulu's gathering caps of ten indoors and twenty-five outdoors from August 23, 2021 and Safe Access Oahu from September 13, 2021 governed the quarter.94 St. Louis County's stay-at-home extension of April 20, 2020 named "animal shelters or animal care management, including boarding, grooming, pet walking and pet sitting" essential, and the City of St. Louis and St. Louis County re-imposed indoor face coverings from July 26, 2021.95 Chicago's Public Health Order 2020-3 carried Illinois's "veterinary care and all healthcare and grooming services provided to animals" clause, and Oak Park, the City and Cook County reinstated indoor face coverings from August 6, 20 and 23, 2021.96 Anne Arundel County's Executive Order 21 permitted pet grooming from May 15, 2020 "by appointment only" at fifty percent; Baltimore City's Health Commissioner re-imposed indoor face coverings by an order of August 10, 2021 "effective immediately," in force to March 1, 2022.97 Jefferson County and Boulder County, Colorado issued face-covering orders in May 2021 naming "dog grooming" and settings ordered by a "veterinary practitioner"; Denver adopted each State order and required vaccination of hospital, clinic, long-term care, school and City personnel by September 30, 2021; Boulder County required indoor face coverings from September 3, 2021.98 Philadelphia's Emergency Order No. 1 of March 17, 2020 excepted "[v]eterinary clinics and pet stores" from its prohibition on businesses outside the essential list, and the City re-imposed face coverings in every indoor setting from August 12, 2021 and required vaccination of health-care workers and City employees from August 16 and September 1, 2021.99 New York City's Key to NYC required proof of vaccination for the workers and patrons of covered premises from August 17, 2021, with penalties from September 13, and the City required vaccination or testing of its health-care and congregate staff from August 2 and 16, 2021; Boston, Somerville, Cambridge, Brookline and Worcester re-imposed indoor face coverings between August 12 and September 3, 2021; Montgomery County, Maryland re-imposed indoor face coverings from August 7, 2021 (Resolution 19-975 of August 5) and Prince George's County from 5:00 p.m. August 8, 2021 (Executive Order 18-2021 of August 5); New Orleans re-imposed face coverings on July 31, 2021 and a vaccination-or-test entry requirement on August 16, 2021, and Jefferson Parish required indoor face coverings from August 4, 2021; Clark County, Nevada ordered every employee of every business in indoor public spaces to wear a face covering from July 22, 2021, and the Eighth Judicial District Court required a face covering of every person in every court facility "regardless of vaccination status" from July 19, 2021; Kansas City's ordinances of August 19 and September 23, 2021 and Jackson County's order of August 6, 2021 required indoor face coverings under RSMo § 67.265; Oakland and Wayne Counties, Michigan ordered face coverings in every school and day care from August 24 and 27, 2021; Minneapolis, Saint Paul, Ramsey and Hennepin Counties required face coverings in their facilities from August 3, 2021; Palm Beach County named "[v]eterinarians, mobile pet groomers and pet boarding facilities" essential in March 2020 and Miami-Dade required daily hospital reporting from July 29, 2021; Knox County, Tennessee issued Phase Two guidelines for "[p]et grooming, daycare programs and veterinary clinics" from May 26, 2020 and Shelby County re-tightened in August 2021; Summit County, Utah recited that veterinary procedures were "restricted per Utah" order in March 2020 and Salt Lake City required a face covering of every employee and visitor in City buildings from July 28, 2021; the Arizona Superior Court required face coverings in every courthouse from August 9, 2021 and the Phoenix Union High School District from August 2.100 The metro table on this page tabulates the metropolitan instruments; the third-quarter 2021 reinstatements are listed in the quarters section.
The sector regulators
The federal regulators
Three federal agencies remade the rules of veterinary practice. The Food and Drug Administration's Guidance for Industry #269 of March 24, 2020 suspended enforcement of the animal-examination and premises-visit elements of the federal VCPR for extralabel drug use and veterinary feed directives so that veterinarians could prescribe by telemedicine, an enforcement policy listed in the Federal Register on May 12, 2020 and withdrawn only on February 21, 2023; the policy is guidance by its own legend, is cited here as the federal accommodation to the State orders that closed waiting rooms and postponed visits, and fixes by its dates that the compelled substitute was still the rule on every day of the third quarter of 2021.101 The Drug Enforcement Administration's exceptions of March 16, 20 and 25, 2020 governed every controlled-substance prescription a veterinarian wrote through the public health emergency.102 The Secretary of Health and Human Services drew veterinarians and veterinary students into the vaccination workforce on March 11, 2021.103 The Centers for Disease Control and Prevention suspended the importation of dogs from more than one hundred designated countries effective July 14, 2021, an order addressed to importers, breeders, rescues and the veterinarians who certify.104 The Occupational Safety and Health Administration's Healthcare Emergency Temporary Standard of June 21, 2021 does not reach veterinary settings, and its National Emphasis Program's target list does not include NAICS 541940 or 812910; this analysis does not cite either as an order on this industry, and it cites Washington's Proclamation 21-14, which expressly excludes "[v]eterinary health care settings" from the health-care vaccination mandate, as proof that the regulators knew this industry and drew their lines around it deliberately.105 The industry's occupational-safety layer was the State-plan rules: Cal/OSHA's section 3205 from November 30, 2020; Oregon OSHA's OAR 437-001-0744 with Appendix A-10 from November 16, 2020; Virginia's 16VAC25-220 from July 27, 2020; and MIOSHA's emergency rules from October 14, 2020 to June 22, 2021.106
The State licensing regime
The State telemedicine and VCPR waivers ran through the third quarter of 2021 in California (DCA-21-173 of July 1 and DCA-21-193 of August 31, 2021, to October 31, 2021), Maine (EO 35 § I(A) to August 30, 2021), Pennsylvania (Act 21 to September 30, 2021 and Act 73 to March 31, 2022) and Hawaii (the § 471-10 suspension to August 6, 2021; EO 21-06 naming veterinarians from September 1, 2021), and Kentucky's Board of Veterinary Examiners' COVID-19 Order of April 16, 2020 ran through the quarter by force of 2021 HJR 77 and 2021 Special Session HJR 1 (to January 15, 2022); the Board's order is cited from the General Assembly's Acts (Ex. KY-046; Ex. KY-056), which ratify it, fix its date and extend it to January 15, 2022, and the Acts are the instruments cited; Colorado's D 2020 020 § G and Florida's DBPR Emergency Order 2020-04 § 11 supplied the 2020 waivers; Tennessee suspended veterinary facility inspections from May 12, 2020; California waived face-to-face training for licensure applicants from June 4, 2020 and ordered veterinarians vaccinators on March 30, 2021; and Missouri suspended its telemedicine statutes from March 18, 2020 to August 27, 2021 and, by Executive Order 21-09, re-suspended them through December 31, 2021.107 Each of these is an order of the authority with power over the licensure it modified; each modified the manner in which every licensee in the State could lawfully practice; and each was issued because the orders of the same governments had made the in-person examination the licensee's regulation requires a thing the licensee could not perform.
The counterparties
The human hospitals whose PPE shortages were the recited premise of the veterinary suspensions operated under elective-procedure, capacity-reservation, visitor and staff orders in every quarter; the veterinary teaching hospitals lent them ventilators and anesthesia machines.108 The schools of the workforce's children closed in every State in the spring of 2020, ran remote or hybrid under mandatory orders in 2020-21, and reopened in the autumn of 2021 under mask and quarantine orders in at least eighteen States and the District of Columbia; the child-care centers ran emergency-only in the spring of 2020.109 The transit systems of the commute ran reduced schedules in 2020 and required masks on every rider under federal law from February 1, 2021.110 The courts closed to the public in March 2020 and ran remote-default through 2021; the motor-vehicle and board offices closed or ran by appointment.111 The landlords of the industry's premises and the customers' homes operated under the eviction and foreclosure moratoria through August 26 and September 30, 2021.112 The agricultural customers' processing plants operated under Executive Order 13917, the plant outbreak closures and the H-2A consular suspensions.113 The breeders, rescues and importers operated under the dog-importation suspension from July 14, 2021.114 Each of these is an order limiting commerce, travel or group meetings; each reached this industry's operation through a counterparty; and Q&A-12's own logic and the United States' representation that "a business may be suspended 'due to' a government order addressing a third party" treat them as the orders they are.115
The ecosystem
Six mechanisms carried orders addressed to others into this industry's operation. Supply chain and borders: the Defense Production Act orders, the scarce-materials designation and the FEMA export rule governed the respirators, gloves and gowns the industry buys; the land-border prohibition barred a commuting Canadian practice owner from his own clinic; the entry proclamations and consular suspensions kept the foreign-trained veterinarians and the H-2A workers of the industry's agricultural customers out of the country.116 Workforce, schools and child care: the school closures, the emergency-only child-care orders, the FFCRA leave mandate and the quarantine directives removed the industry's staff from its clinics by law, and the 2021-22 school orders did so again.117 Travel, tourism and gatherings: the entry proclamations, the traveler quarantines of New York, Hawaii, Alaska, Kansas and others, the collapse of air travel under the conveyance and testing orders, and the gathering caps of every State ended the boarding customer's trip, the training class and the adoption event.118 The meetings collection of the Library carries the conventions, trade shows, fairs, shows and recurring gatherings of this industry that those orders disrupted, with the organizers' stated actions in 2020 and 2021 and the venue jurisdictions' orders. Courts and public offices: the court and board closures suspended the licensing, the contracts and the collections on which the industry's administration runs.119 Transit: the conveyance order and the TSA directives conditioned every commute from February 1, 2021.120 Health care as counterparty: the human-health orders on hospitals, PPE and vaccination reached the industry's supplies, its premise of operation and, from 2021, its licensed workforce.121
Foreign orders as facts and circumstances
The foreign governments' orders are cited as the facts and circumstances in which the federal instruments limiting travel and commerce with those countries operated, not as orders of an appropriate governmental authority. Canada barred discretionary entry by United States residents until August 9, 2021 and imposed testing, ArriveCAN and quarantine rules thereafter, which is why the land-border notifications of the Department of Homeland Security limited the commerce of every border practice and every Canadian customer; China's entry suspension, Mexico's semaforo, the European Union's list (from which the United States was removed on August 30, 2021), Japan's fourth state of emergency of July 12 to September 30, 2021, Vietnam's southern lockdowns to September 30, 2021 and Taiwan's Level 3 to July 26, 2021 are the conditions in which the entry proclamations, the inbound-testing order and the supply-chain disruption the Federal Reserve recorded in July and September 2021 operated.122