Airports Responding to Public Health Emergencies: Legal Considerations (2023) / Chapter Skim
Currently Skimming:
Pages 9-53
The Chapter Skim interface presents what we've algorithmically identified as the most significant single chunk of text within every page in the chapter.
Select key terms on the right to highlight them within pages of the chapter.
From page 9... ...
ACRP LRD 44 9 is section of the digest discusses the legal implications of certain steps that a sponsor might consider taking prior to the emergence of a public health crisis to prepare for such a risk. In particular, this section addresses the identi cation of relevant emergency contacts, the formation of a group of airport stakeholders (referred to in this section as a "Task Force")
|
From page 10... ...
10 ACRP LRD 44 to take the initiative to address the lessons of the COVID-19 pandemic in revising their Emergency Plans. To assist airport sponsors, the FAA has compiled a list of "potential team members" that a sponsor might include in developing its Emergency Plan.76 at list includes, among a long list of roles, airport leaders and operational managers, air carrier representatives and aircra operators, airport tenants, hospital and rescue o cials, federal o cials from the FAA and other agencies, law enforcement o cials, and public-information o cers.77 (While some of the agencies the FAA suggests including in the planning group, such as the National Weather Service,78 may not be pertinent to a public health emergency, sponsors will likely nd the list a useful starting point.)
|
From page 11... ...
ACRP LRD 44 11 at its airport to participate in the Task Force or, at least, to elect representative tenants to participate. Alternatively, the sponsor could make its Task Force proceedings as open and transparent as prudence dictates so that no aeronautical tenant believes it has not had the opportunity to provide input.
|
From page 12... ...
12 ACRP LRD 44 situations."96 Acquisition Regulation Part 18 speci es those exibilities, some of which the federal government may only invoke in the event of a declared emergency.97 For example, as Part 18 notes, Acquisition Regulation § 6.302-2 waives certain competitive-bidding requirements in the event of "unusual and compelling urgency."98 Other sections of the Acquisition Regulation allow for acquisition through oral requests for proposal or from vendors not then registered with the federal government's contracting system, in emergency situations.99 In the event that an airport sponsor is a federal contractor and must respond to a public health emergency, the sponsor would be well-advised to determine whether any of its federal contracts limit its procurement authority in its role as a federal contractor. If so, the sponsor, in coordination with its federal contracting point of contact, might assess whether any of the Acquisition Regulation's emergency exemptions reduce the sponsor's procedural obligations for conducting procurement under its relevant federal contract(s)
|
From page 13... ...
ACRP LRD 44 13 quirement … would endanger the health or safety of the people or their property[.] "111 Meanwhile, sponsors may be subject to municipal or county procurement requirements, which may, in turn, contain emergency exemptions.112 Sponsors should take care to understand the emergency provisions of any state or local procurement laws that may apply to them -- and, ideally, identify and analyze such provisions before a public health emergency, or any other emergency, arises.
|
From page 14... ...
14 ACRP LRD 44 result of the legal complexity of the pandemic but instead an artifact of the political climate in the United States during that time. Regardless of whether such extrinsic factors were at play, courts were called upon to rule on novel questions of law that established precedents that will have stare decisis implications for future public health emergencies.)
|
From page 15... ...
ACRP LRD 44 15 Table 1. Selected Cases That Address Health Requirements in Airport Context Case Summary of Decision Topic: Vaccine Mandate Sambrano v.
|
From page 16... ...
16 ACRP LRD 44 Table 2. Selected Other Cases Potentially Relevant to Airport Sponsors Case Summary of Decision Topic: Vaccine Mandates Nat'l Fed'n of Indep.
|
From page 17... ...
ACRP LRD 44 17 ict with the Constitution."124 Given the public right "to protect itself against an epidemic of disease"125 and the state's reasonable conclusion that smallpox vaccination was necessary to achieve such protection,126 the Court concluded that the statute did not infringe upon the Constitution.127 At its core, Jacobson stands for the proposition that state governments, and local governmental bodies acting under their authority, have extensive, though not unlimited, discretion under the Constitution to impose health orders, including vaccination mandates, in response to public health emergencies. Despite its age, Jacobson remains good law, and federal courts have relied on it to adjudicate challenges to state public health mandates during the COVID-19 pandemic.128 at is not to say that Jacobson is immune to reconsideration.
|
From page 18... ...
18 ACRP LRD 44 healthcare workers to be vaccinated against COVID-19 as a condition of receiving continued Medicare and Medicaid funding, even the four conservative dissenters suggested that the federal government could impose a vaccination requirement so long as Congress clearly authorized it.141 As Justice omas wrote for the dissenters, [W] e expect Congress to use exceedingly clear language if it wishes to signi cantly alter the balance between state and federal power.
|
From page 19... ...
ACRP LRD 44 19 airline rates, routes, or services.'"151 However, the Deregulation Act does make a limited exception (the Proprietors Exception) for airport sponsors, providing, " is subsection does not limit a State, political subdivision of a State, or political authority of at least 2 States that owns or operates an airport served by [a federally certi cated]
|
From page 20... ...
20 ACRP LRD 44 press preemption, via the Deregulation Act, would not apply.171 Separately, the court held that eld preemption, another type of preemption in which the federal government so completely regulates a eld of law that it leaves no room for state or local regulation, does not preclude "aviation-related restrictions during a public health emergency."172 While the Deregulation Act and its case law constrain a sponsor's health-regulatory authority, sponsors are reminded that other federal statutes, especially those related to disability rights, may also directly implicate the permissible scope of health policies. As the federal government's Runway to Recovery guidance advised airport sponsors and airlines last year, [Public health]
|
From page 21... ...
ACRP LRD 44 21 posing mask or vaccine mandates.178 Several other states have taken similar action.179 By contrast, even aer a federal judge struck down a federal mask mandate governing mass transit in April 2022, the County of Los Angeles, the Port Authority of New York and New Jersey (the Port Authority) , and New York City's state-controlled transit system a rmed their own mask mandates for their respective transit facilities, including, for Los Angeles and the Port Authority, airports.180 Of course, the exact nature of a sponsor's authority to issue health regulations will vary between sponsors, and this digest does not provide speci c guidance for any individual sponsor regarding its state statutory authority.
|
From page 22... ...
22 ACRP LRD 44 subject has committed an o ense.191 However, the Court, and lower federal courts, has upheld various types of "administrative" searches and seizures, including sobriety checkpoints192 and, in the airport context, passenger security screenings.193 As the Court has explained, determining whether a search or seizure is reasonable requires "balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."194 erefore, if a screening were to constitute a seizure, a sponsor could argue that the seizure is conducted administratively for a legitimate governmental interest.195 In that case, however, the sponsor would have to demonstrate that the governmental interests involved do, in fact, outweigh the traveler's Fourth Amendment interest in not being seized.196 at would presumably require the sponsor to show that it has a legitimate interest in knowing whether persons in the airport are infectious and that its health screening is at least somewhat e ective at identifying infected travelers. If either the sponsor's interest was not legitimate or the screening method was demonstrably ine ective, a court could well hold that there is little governmental interest in conducting the screening, rendering it on balance unreasonable.
|
From page 23... ...
ACRP LRD 44 23 of health screening constitutes a search likely turns on whether such screening constitutes a "physical intrusion" or reveals detailed private medical facts. And whether such screening e ects a "seizure" likely depends on whether it causes a reasonable person to feel detained, at least for any meaningful period.
|
From page 24... ...
24 ACRP LRD 44 port sta for health screening generally. Furthermore, the 2022 Guidance con ned much of its information to what it termed the "extraordinary" or "exceptional" circumstances of "the COVID-19 public health emergency."217 e 2022 Guidance applied that quali cation to passages permitting sponsors to allocate certain airport facilities for,218 or otherwise "support[,]
|
From page 25... ...
ACRP LRD 44 25 states or other governmental bodies authorized by their states to issue public health requirements may lack the authority to require a passenger to present a negative test to enter the airport. Despite the broad latitude that Jacobson found states to have in mandating public health requirements, airport sponsors would be well-advised to consider whether a testing requirement could run afoul of the Fourth Amendment.
|
From page 26... ...
26 ACRP LRD 44 and compliance with federal and state "health guidelines."241 In turn, the guidance stated, "Public health o cials must take care to coordinate with airport sponsors, airlines, TSA, airport law enforcement, and other entities on when, where, and how their government conducts this screening and isolating[.] "242 In any event, the guidance advised sponsors that health screenings "should not interfere with airport access and should not impact security" for travelers or aircra operations.243 e FAA's highly quali ed endorsement of health-screening protocols, including disease testing, for travelers signi cantly limited sponsors' authority.
|
From page 27... ...
ACRP LRD 44 27 lation Act to a public health measure is not "exceedingly clear," and given the Tenth Circuit's observation in Arapahoe that "[t] he precise scope of an airport owner's proprietary powers [under the Deregulation Act]
|
From page 28... ...
28 ACRP LRD 44 First, the Southern District evaluated Jones's claims under Jacobson. Applying Jacobson, the Southern District held that Jones could only sustain his claims if he demonstrated that the executive order's quarantine requirement "bore ‘no real or substantial relation' to public health or was ‘a plain, palpable invasion of rights secured by the fundamental law.'"262 Holding that the quarantine order pertained to a public health emergency, was implemented to curb that emergency, and was reasonable in light of public health guidance, the Southern District concluded that Jones had failed to make his case under Jacobson.263 e Southern District also evaluated Jones's claims under the more-modern "tiers of scrutiny" standard, given the Supreme Court's recent hints that it disfavors Jacobson's broad application, at least as to First Amendment claims.264 Observing that the right to travel is " rmly embedded" in federal jurisprudence, the Southern District applied strict scrutiny to Jones's right to travel claim.265 Observing that federal courts had split on whether the New York quarantine order and various other such orders did, in fact, burden the right to travel, the Southern District concluded that the order would survive strict scrutiny even if it did burden such right.266 e Court recited the familiar strict scrutiny standard, explaining that, to survive strict scrutiny, the government must show that its policy is "narrowly tailored to promote a compelling Governmental interest" and "use[s]
|
From page 29... ...
ACRP LRD 44 29 cantly expand OSHA's regulatory authority without clear congressional authorization."277 By contrast, the Court upheld the HHS vaccine requirement. at requirement was much narrower, and grounded in contract: e HHS requirement merely provided that, as a condition of eligibility for Medicare or Medicaid funding, recipients thereof must ensure that their employees receive COVID-19 vaccinations, with certain exemptions.278 e Court observed that "Congress has authorized" the Secretary of HHS to "impose conditions on the receipt of Medicaid and Medicare funds" that the Secretary of Labor nds "necessary" for the health and safety of those "furnishing services" to the two health programs.279 Observing that COVID-19 is a "highly contagious, dangerous, and -- especially for Medicare and Medicaid patients -- deadly disease," the Court acknowledged that the Secretary of HHS had found a vaccine mandate necessary to protect such patients during the pandemic.280 us, the Court held, the vaccine mandate " ts neatly within the language of the statute" authorizing HHS to impose conditions on receipt of its funds.281 Both decisions are arguably narrow.
|
From page 30... ...
30 ACRP LRD 44 its contracting authority, rather than through lawmaking or true regulation. As the Sixth Circuit highlighted, the Contractor Mandate "sweeps in at least one- h of our nation's workforce, possibly more," reecting the fact that about 20 percent of American workers work for federal contractors.292 at court further observed that vendors located in Kentucky, including state agencies, held nearly $10 billion worth of federal contracts in 2020, while vendors in Tennessee and Ohio, the two other states subject to that court's Contractor Mandate injunction, respectively held $10.2 billion and $12.5 billion worth of federal contracts that year.293 And, while several federal courts have so far denied the federal government's power to enforce the Contractor Mandate, even the Sixth Circuit has conceded that "[c]
|
From page 31... ...
ACRP LRD 44 31 which are largely grounded in statute and federal regulation, are imposed and enforced by contract, in much the same way that the Contractor Mandate was to be applied. While the federal government elected not to use the AIP grant agreements as a vehicle to impose the Contractor Mandate, that was a policy choice, not a legal decision.
|
From page 32... ...
32 ACRP LRD 44 public would be prohibited from transiting the airport. Short of a prohibition on certain air carrier operations entirely, it seems hard to consider a policy that could have a more disruptive, burdensome e ect on air carrier service.
|
From page 33... ...
ACRP LRD 44 33 f. Prohibiting Arrival of Certain Aircraft Federal law and grant assurances limit a sponsor's ability to prohibit certain aircra from using an airport or to require aircra to land at certain airports, and not others, for health screening.
|
From page 34... ...
34 ACRP LRD 44 D Labor Management and Staffing Considerations In addition to their role as transportation hubs, airports are among the largest sources of employment in many regions of the United States.335 A 2014 study estimated that nearly 1.2 million people worked among 485 commercial U.S.
|
From page 35... ...
ACRP LRD 44 35 federally funded programs and various forms of discrimination by federal contractors.345 erefore, even an unintentional violation of any such policy might jeopardize a sponsor's AIP grant eligibility, in addition to the various other penalties a sponsor could face for a discriminatory employment practice. Finally, some sponsors may be subject to collectivebargaining agreements that further restrict the sponsor's ability to reduce sta or may dictate the tools which the sponsor uses to does so.
|
From page 36... ...
36 ACRP LRD 44 shield request, advising him that United "currently requires all employees to use a face mask even when using a face shield," and instead placed him on leave.348 e plainti sued, alleging various causes of action under California law, including employment discrimination on the basis of a disability in violation of California's Fair Employment and Housing Act.349 e federal district court dismissed the complaint with prejudice.350 As the court held, "Plainti is unable to establish a prima facie case of disability discrimination because he cannot demonstrate that he is able to perform the essential duties of his position without endangering himself or others."351 Observing that the parties did not dispute that the plainti 's job "requires that he wear a mask in order to protect his own health and safety of those around him," the court found no evidence of discrimination.352 Furthermore, the court concluded that United had a "legitimate and nondiscriminatory basis for its mask policy -- the protection of its employees and customers from the highly contagious, air-borne virus, COVID-19."353 e court further held that United's mask requirement "was grounded in a rea348 Id.
|
From page 37... ...
ACRP LRD 44 37 us, the court declined to enjoin the employer hospital's vaccination mandate.368 As previously noted, state courts have ruled similarly. For example, the Louisiana Supreme Court has concluded that applicable at-will employment law precludes an employee from stating a claim against a private employer who mandates vaccination against COVID-19.
|
From page 38... ...
38 ACRP LRD 44 an employment contract, a collective-bargaining agreement, or some other labor agreement -- could constrain the sponsor's ability to issue such a health requirement, at least without completing various procedural or consultative steps. is is another example of an issue that should be identi ed in early planning for a public health emergency.
|
From page 39... ...
ACRP LRD 44 39 and healthcare workers, be vaccinated against the disease.390 Various employees of state and local agencies moved to preliminarily enjoin the order, in part on the ground that the order substantial[ly] modi [ed]
|
From page 40... ...
40 ACRP LRD 44 airport tenant.404 us, a sponsor's power to require a tenant's employees to follow certain health orders may come down to whether the sponsor's contract with that tenant permits the sponsor to issue health orders, make other demands in the public interest or the interest of health or safety, or otherwise allows for unilateral contract modi cation for reasons including the addition of a health requirement. Finally, regardless of whether a sponsor is a state, local government, or independent body, and irrespective of the terms of a sponsor's tenant contracts, state or local law may further constrain its ability to impose public health requirements upon airport tenants.
|
From page 41... ...
ACRP LRD 44 41 Importantly, the Ninth Circuit's decision in Bernstein is an outlier, at odds with other federal case law.419 Nonetheless, the Supreme Court recently declined to review the Ninth Circuit's Bernstein decision, allowing it to stand.420 ( e Supreme Court's decision not to review Bernstein does not indicate an endorsement of the Ninth Circuit's ruling; the Court denies the vast majority of petitions for review,421 and the Court has repeatedly emphasized that such a denial "imports no expression of opinion upon the merits of the case."422) However, the federal court for New York's Eastern District recently reached the conclusion opposite Bernstein in a case that the Eastern District said "appears to be directly on point" with Bernstein.423 In that case, Delta Air Lines v.
|
From page 42... ...
42 ACRP LRD 44 particularly those that collect data on airport users -- raise potential data privacy concerns and could create liability for a sponsor. is section of the digest discusses several general data privacy concerns that sponsors are encouraged to consider when exploring the use of monitoring and other technologies to respond to a public health emergency.
|
From page 43... ...
ACRP LRD 44 43 Figure 4. Summary of the pathway-analytics process.
|
From page 44... ...
44 ACRP LRD 44 e orts could face scrutiny under the Fourth Amendment, which protects "[t] he right of the people to be secure in their persons, houses, papers, and e ects, against unreasonable searches and seizures[.]
|
From page 45... ...
ACRP LRD 44 45 credit-card number, in violation of FACTA.469 In one case, the defendant, an airport sponsor, settled the matter at a cost of nearly $1.3 million, between attorneys' fees and a settlement fund.470 While these cases do not address data collection in the context of a public health emergency, they reect the risk that a sponsor may face by failing to protect data in accordance with various statutory and regulatory requirements. Sponsors are also encouraged to consider the liability they may incur if an employee or third-party vendor misuses sensitive personal data.
|
From page 46... ...
46 ACRP LRD 44 engaging counsel with expertise in data privacy or cybersecurity to review relevant agreements and mitigate potential liability. In light of these various legal considerations, sponsors are further encouraged to consult ACRP LRD 42, which recommends various best practices for airport sponsors seeking to collect, use, or retain data.
|
From page 47... ...
ACRP LRD 44 47 ness entities within the jurisdiction."496 Nonetheless, the FAA reminded sponsors that such closures might implicate Airport Concession Disadvantaged Business Enterprise regulations and therefore advised sponsors to coordinate any such closures with the FAA's O ce of Civil Rights.497 With respect to using certain airport facilities for pandemic mitigation e orts, the 2022 Guidance takes a subtly more permissive view than prior iterations of the FAA's COVID-19 guidance. Within its discussion of using airport revenue for public health e orts, the 2022 Guidance added a new observation that "[p]
|
From page 48... ...
48 ACRP LRD 44 ing parking aircra on aprons or "movement areas," such as runways or taxiways, to develop and coordinate any such plan through an "aircra parking plan committee."506 e CertAlert recommended that such a committee include representatives of the airport's sponsor, airlines, FBOs, air tra c control tower, other airport tenants (presumably including concessionaires) , aircra rescue and re ghting sta , law enforcement o cials, and "local FAA technical operations personnel."507 at CertAlert also recommended several steps a sponsor should take to prepare and implement a plan for overow aircra parking.
|
From page 49... ...
ACRP LRD 44 49 tions or guidance. Nonetheless, the CertAlerts and Safety Alert that the FAA issued with respect to overow parking during the COVID-19 pandemic o er both practical and regulatory guidance for sponsors considering whether to o er overow aircra parking.
|
From page 50... ...
50 ACRP LRD 44 rent abatement for nonaeronautical tenants could have the e ect of increasing costs on aeronautical tenants.529 e FAA guidance also addressed rent or fee deferrals. e 2022 Guidance advised that sponsors whose bond or other obligations prevent the sponsor from abating rent may wish to consider a rent or fee deferral.530 However, the 2022 Guidance stated that the "terms and interest rates applied" to such deferrals "should be reasonable and applied fairly to similarly situated businesses."531 Furthermore, the 2022 Guidance directed sponsors o ering deferrals to follow speci c nancial and accounting practices with respect to such deferrals.532 (Earlier versions of the FAA's guidance provided substantially the same advice as that described in this paragraph.533)
|
From page 51... ...
ACRP LRD 44 51 While a detailed analysis of permissible airline incentives is beyond the scope of this digest, those limitations suggest that sponsors need to exercise caution before either implementing or terminating an air service incentive program that is designed to respond to a public health emergency. While neither the Revenue Use Policy nor the Compliance Manual explicitly de nes "competition" in the context of those policies' limitations on airport revenue use for incentives programs, it is far from apparent that sponsor incentives to maintain preexisting air service would satisfy the FAA's criteria for permissible incentives.
|
From page 52... ...
52 ACRP LRD 44 the Central Terminal Area that might create problems such as congestion or the disruption of the activities of those who use LAX."548 Rather, the Court stated, the resolution "purports to create a virtual ‘First Amendment Free Zone' at LAX," prohibiting "even talking and reading, or the wearing of campaign buttons or symbolic clothing."549 "We think it obvious," the Court concluded, "that such a ban cannot be justi ed even if LAX were a nonpublic forum because no conceivable governmental interest would justify such an absolute prohibition of speech."550 e Supreme Court has, however, upheld an airport sponsor's authority to impose "reasonable" restrictions on First Amendment activities at an airport. Several years aer its decision in Jews for Jesus, the Court considered two questions: "whether an airport terminal operated by a public authority is a public forum" for First Amendment purposes and "whether a regulation prohibiting solicitation in the interior of an airport terminal violates the First Amendment."551 In that case, International Society for Krishna Consciousness v.
|
From page 53... ...
ACRP LRD 44 53 air passengers."570 Given those facts, the court held that FWA's sponsor "could reasonably conclude that limiting free speech activity that is not otherwise incidental to air travel to certain areas within and outside the terminal is related to the protection of its interests in" maintaining security, reducing congestion, easing foot-tra c ow, and preserving airport aesthetics.571 Other federal courts have upheld additional limitations on free expression at airports. At least two federal courts, including the Eleventh Circuit, have held that airport sidewalks are not public forums, despite courts typically considering sidewalks as such.572 Federal appellate courts have also upheld a sponsor's right, as airport proprietor, to regulate the placement and licensure of news racks to protect concessions revenues, despite the expressive nature of the publications that the news racks sold.573 2.
|
Key Terms
This material may be derived from roughly machine-read images, and so is provided only to facilitate research.
More
information on Chapter Skim is available.