Senate bill would require TSA temperature checks at US airports

Under a bipartisan bill introduced in the US Senate, the Transportation Security Administration (TSA) would be required to conduct temperature checks on all passengers and other individuals seeking entry to an airport's sterile area. Airlines have been lobbying for the TSA to conduct such temperature checks for several months. During a 120-day pilot programme, the TSA would screen all individuals for a fever of 100.4 degrees Fahrenheit or higher before they would be allowed to enter an airport's sterile area.

Under Senate Bill 4623, which was introduced in the Senate Commerce, Science and Transportation Committee by ranking minority member Senator Maria Cantwell and cosponsored by majority member Senator Rick Scott, the TSA must establish the programme within 30 days of the bill's passage and consult with the secretaries of transport, homeland security and health and human services and the Centres for Disease Control and Prevention. While the TSA may choose the pilot programme airports, it must "select airports that represent diverse operating conditions, with high, medium, and low passenger throughput". In developing the programme, the TSA would need to address a broad list of concerns, including:

• the type of technology to use for screenings;
• screening procedures (including how to accommodate individuals with disabilities or those observing religious practices);
• privacy protections; and
• training for TSA employees.

On conclusion of the programme, the TSA must issue a policy for conducting temperature checks for the remainder of the COVID-19 public health emergency.

The Senate bill would require airlines to allow passengers who are prohibited from flying as a result of registering fevers to change or cancel their flights at no cost. Similarly, any employee who registers a fever would be subject to their employer's leave policies. Further, the bill requires that the Department of Transportation modify its passenger notification regulations to require airlines to notify passengers:

• about safe travel guidelines;
• that they will be subject to an airport temperature check; and
• that they should not travel if they have a fever.

The TSA arguably already has authority to conduct such checks. The Aviation and Transportation Security Act (Section 114 of Title 49 of the US Code) affords the TSA broad, overarching authority over transport security, but two of the act's specific provisions are relevant to passenger temperature screenings:

• Section 114(g)(1) of Title 49 of the US Code, which grants the TSA authority to act in response to a "national emergency,"; and
• Sections 114(f)(4) and (16) of Title 49 of the US Code, which afford the TSA discretion to carry out unspecified measures "related to transportation security".

However, the TSA has resisted calls to proactively conduct these checks itself, instead urging them to be done by airports and airlines. Should Section 4623 become law, the TSA would no longer have the discretion to resist such calls. A related bill that was introduced in the House in July 2020 – HR 7651 – calls for a similar pilot programme, but that bill has not yet passed the House of Representatives.

For further information on this topic please contact Rachel Welford at Cozen O'Connor by telephone (+1 202 912 4800) or email (rwelford@cozen.com). The Cozen O'Connor website can be accessed at www.cozen.com.