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 and open competition" – a requirement for federal procurement mandated by CICA – by effectively excluding an offeror that chooses not to follow the vaccine mandate, but otherwise represents the best value to the government, from award.
  • The Executive Order likely violates the nondelegation doctrine, a principle of administrative law that bars Congress from delegating legislative power to the president "to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable." Kentucky et al. v. Biden et al., No. 3:21-cv-00055-GFVT (E.D. Ky. Nov. 30, 2021) (quoting A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537–38 (1935)). The court, referencing FPASA, and its purpose of promoting economy and efficiency in procurement, found that the government could not "point to a single instance when the statute has been used to promulgate such a wide and sweeping public health regulation as mandatory vaccination for all federal contractors and subcontractors."
  • The Executive Order likely violates the Tenth Amendment of the U.S. Constitution because it intrudes on an area traditionally reserved to the states – the regulation of health and safety matters.

Conclusion and Takeaways

This is far from the final word on the matter. First, the injunction applies only to contractors and landlords with "covered contractor workplaces" – which includes leased space – in Kentucky, Ohio and Tennessee (the three states that sued collectively in Kentucky District Court). Second, this is a preliminary injunction; while the judge found the plaintiffs likely to succeed on the merits, it does not represent the conclusion of the case. Finally, the government is likely to appeal this order to U.S. Court of Appeals for the Sixth Circuit (the same appellate court charged with deciding the validity of the Occupational Safety and Health Administration Emergency Temporary Standard (OSHA ETS), requiring all employers with 100 or more employees to enforce a mandatory COVID-19 vaccination policy). It is unclear how the Sixth Circuit will rule, on either the federal contractor vaccine mandate or the OSHA ETS.

Other lawsuits seeking similar preliminary relief are pending in multiple courts in various circuits throughout the country. If those courts rule differently, it may set up a circuit split that invites a U.S. Supreme Court review.