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03 March 2021
The COVID-19 pandemic has not been kind to air carriers. Not only have they seen the loss of up to 75% of their passenger traffic, they have also been left to develop and enforce their own policies regarding mask wearing and other measures designed to protect the health of their employees and passengers. This has resulted in videos being shared of onboard altercations as passengers resist compliance with airline rules. The absence of a federal mandate has exacerbated this situation.
On 21 January 2021, the day after his inauguration, President Joe Biden signed an executive order (EO 13998) requiring, among other things, the wearing of masks on transport conveyances. This order was implemented by the Centres for Disease Control (CDC), via an order issued on 1 February 2021, under Section 361 of the Public Health Service Act. The CDC order mandates all people (including employees and crew) to wear masks "when traveling on conveyances into and within the United States", as well as at "transportation hubs". These terms are defined to include airports and both US and foreign air carriers. The CDC order imposes an obligation on carriers and airport operators to enforce these requirements through "best efforts", which include:
There are certain exceptions, such as:
Further, the CDC order exempts those under the age of two and most significantly "a person with a disability who cannot wear a mask, or cannot safely wear a mask, because of a disability as defined by the Americans with Disabilities Act".
On 31 January 2021 the TSA issued a security directive that aims to implement and enforce the executive and CDC orders. Both the CDC and TSA directives allow a narrow exception for disability-based inability to wear a mask and permit airlines to require medical certificates and a negative COVID-19 test as a condition for granting an exemption.
These requirements, while significant, are straightforward and apply to both US and foreign airlines. They take the burden off air carriers of making their own, sometimes inconsistent, policies about mask wearing; now carriers can tell their passengers that masks are required by federal law, like wearing seatbelts or not smoking on aircraft. This should make it easier for carriers to enforce practices that protect their own employees as well as other passengers.
However, the complication comes where the CDC mask mandate intersects with the legal rights of airline passengers with qualifying disabilities. The CDC order refers to 'persons with disabilities' as defined in the Americans with Disabilities Act. Air carriers, however, are subject to the more exacting standards of the Air Carrier Access Act (49 US Code Section 41705), as implemented through regulations issued by the Department of Transportation (DOT) in 14 Code of Federal Regulations Part 382.
The DOT has long been zealous in enforcing the rights of people with disabilities. In general, air carriers must make reasonable accommodation for passengers with disabilities. Unsurprisingly, carriers have had to contend with passengers claiming that they should be exempted from the rule on the grounds of a claimed medical problem. Carriers believe that most of these claims are spurious and, in any event, that they are unable to make the necessary determination when passengers are about to be boarded.
Thus, air carriers must walk a fine line between complying with the broad CDC and TSA mandates and accommodating passengers with a disability that prevents them from wearing a mask. To guide carriers, on 5 February 2021 the DOT Office of Aviation Consumer Protection issued a notice of enforcement policy which describes the factors which it will consider when deciding how to enforce these potentially conflicting obligations.
The notice states that some carriers have adopted 'no exceptions' mask rules. These run contrary to the DOT's advice, as some passengers may have legitimate disability-based reasons for not wearing a mask. At the same time, carriers are properly concerned that any unmasked passengers may pose a risk of infection to other passengers. The DOT notice guides airlines in determining whether to carry a passenger, even if that passenger has a legitimate disability-based reason for not wearing a mask. The DOT's guidance aligns with that provided in the CDC and TSA directives, even though those directives did not account for the more stringent requirements of the Air Carrier Access Act.
The DOT has noted that:
Part 382 allows an airline to refuse to provide air transportation to an individual whom the airline determines presents a disability-related safety risk, provided that the airline can demonstrate that the individual would pose a 'direct threat' to the health or safety of others onboard the aircraft, and that a less restrictive option is not feasible.(1)
A 'direct threat' is defined as "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services".
The DOT notice states that passengers who request an exemption from the CDC order may be required to do so "in advance". Airlines may require them to:
check in early and to agree to undergo the required individualized assessment a reasonable period in advance of the scheduled flight, provided that the process is completed on the day of travel.
Airlines may also require passengers to undergo a COVID-19 test (at the passenger's expense) and show a negative result. Other mitigation efforts may include arranging for them to sit in a less crowded section of the plane or fly at a time when flights or airports are less crowded.
These determinations must be "individualized" in accordance with Part 382. It would not be permitted, for example, for carriers to decline exemptions to entire categories of disabilities or adopt a 'no exceptions' policy.
The DOT has indicated that it will refrain from enforcement actions against airlines on account of their masking policies until 22 March 2021, as a matter of prosecutorial discretion. Carriers should take advantage of this delay to review their policies and practices.
For further information on this topic please contact Mark W Atwood at Cozen O'Connor by telephone (+1 202 912 4800) or email (firstname.lastname@example.org). The Cozen O'Connor website can be accessed at www.cozen.com.
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