Federal Judge Rules Against Landlord Vaccine Mandate

• Published date: 06 December 2021
• Subject Matter: Employment and HR, Government, Public Sector, Real Estate and Construction, Health & Safety, Constitutional & Administrative Law, Government Contracts, Procurement & PPP, Landlord & Tenant - Leases
• Law Firm: Holland & Knight
• Author: Mr Gordon Griffin, Robert C. MacKichan Jr. and Kelsey M. Hayes

Highlights

• In the ever-shifting landscape surrounding the landlord (and contractor) vaccine mandate, a federal judge has ruled against the federal government and issued a preliminary injunction that prohibits enforcement of the vaccine mandate for federal landlords and their subcontractors in Kentucky, Ohio and Tennessee while the case is pending.
• The injunction applies only to contractors and landlords with "covered contractor workplaces" - which includes leased space - in the three states.
• This is a rapidly evolving issue, and landlords to the government should closely monitor developments for any changes to their compliance obligations.

In the ever-shifting landscape surrounding the landlord (and contractor) vaccine mandate, a federal judge has ruled against the federal government and issued a preliminary injunction that prohibits enforcement of the vaccine mandate for federal landlords and their subcontractors in Kentucky, Ohio and Tennessee while the case is pending.

In his Nov. 30, 2021, order granting the plaintiffs' request for a preliminary injunction, Judge Gregory Van Tatenhove of the U.S. District Court for the Eastern District of Kentucky first held that the plaintiffs - the Commonwealth of Kentucky, State of Ohio, State of Tennessee and two sheriff plaintiffs, suing in their official capacities as sheriffs for local counties - had standing to challenge the mandate. He then proceeded to find that the plaintiffs were likely to succeed on the merits for the following reasons:

• The president exceeded his authority under the Federal Property and Administrative Services Act (FPASA), 40 U.S.C. ' 101-126, a statute designed to provide the federal government with "an economical and efficient system" for procurement. While FPASA has been used (some would say stretched) to impose a variety of requirements of government contractors, the court concluded that the president likely exceeded his delegated authority under the statute, noting, "While the statute grants to the president great discretion, it strains credulity that Congress intended the FPASA, a procurement statute, to be the basis for promulgating a public health measure such as mandatory vaccination." The court also pointed out that FPASA had never before been used to enact "such a wide and sweeping public health regulation."
• The Executive Order likely violates the Competition in Contracting Act (CICA), 41 U.S.C. ' 3301-3312. The court determined that the Executive Order could preclude "full...