BIDEN SIGNS EXECUTIVE ORDER MANDATING MASKS AND NEGATIVE COVID-19 TESTS FOR TRAVEL
February 1, 2021
On January 21, 2021, President Biden issued the Promoting COVID-19 Safety in Domestic and International Travel executive order, available here, which sets forth a number of new safety mandates pertaining to COVID-19.
Mask Requirements for Domestic Travel
For domestic travel, applicable U.S. agencies must immediately take action to require that masks be worn in compliance with CDC guidelines in or on airports, commercial aircraft, trains, ferries, intercity buses and other modes of public transportation.
Negative Tests Now Required for All Passengers Flying to the U.S.
Effective January 26, 2021, the U.S. requires all passengers arriving on flights from abroad to test negative for SARS-CoV-2, or to present proof of recent recovery from COVID-19. On January 25, 2021, the U.S. Centers for Disease Control and Prevention (CDC) published an updated legal Order requiring pre-departure testing, available here. The CDC also continues to update its Frequently Asked Questions (FAQs) webpage (available here) to provide guidance about application of its Order. The principal changes in the January 25 Order from the CDC’s first version published on January 12 are:
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to remove a requirement that no layover in an multi-segment itinerary to the U.S. can exceed 24 hours without requiring a passenger to re-test;
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to remove an option for carriers to petition the CDC to exempt certain countries from the testing requirement due to inadequate testing capacity; and
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to provide the possibility of exceptions for exigent humanitarian purposes.
We encourage our readers to review these updated documents carefully and let us know if you have any questions.
Under the Order, an air carrier is required to verify that each passenger traveling on a flight to the U.S. has either: obtained a qualifying viral test within three days before the day of the beginning of their journey to the U.S. (e.g., for a flight any time on Friday, the test specimen was collected on or after the preceding Tuesday); or that the passenger tested positive for SARS-CoV-2 within the past 90 days but has since recovered and has been cleared for travel by a medical professional. A negative test result is required even if a passenger has received a vaccine. If a passenger cannot demonstrate they received a negative test or clearance to travel as required by the CDC Order, an air carrier must deny the passenger boarding. Crew who are assigned to operate the aircraft, or who are positioning for another flight (deadheading), are exempt from the pre-departure testing requirement, but must follow the carrier’s occupational safety guidance in accordance with CDC and FAA guidance (SAFO 20009, available at this link) to prevent transmission of the virus.
Air carriers must present to each passenger an Attestation form approved by the CDC (available at this link) – which the passenger uses to certify their eligibility to travel and to accept their legal responsibility for a false report – and air carriers must retain a copy of each passenger’s completed Attestation for two years. The language of the Attestation is exact and cannot be modified, though the whole Attestation can be translated into a language other than English and retained by the air carrier in another language. The Attestation can be presented to passengers and acknowledged electronically at the time of booking or on paper, e.g., as part of the check-in process. Along with the Attestation, an air carrier must verify that each passenger possesses paper or electronic documentation proving their negative test or recovery from COVID-19. Though an air carrier must review this documentation, carrier staff do no need to retain a copy of the testing/recovery documentation. Rather, a passenger is responsible for carrying their own testing/recovery documentation to present as needed; for example, U.S. state and city authorities might review it to determine if a passenger is required to quarantine on arrival in their jurisdiction. At this time, there is no enforceable U.S. federal quarantine requirement, though the Biden Administration is studying this topic and the CDC continues to recommend that all passengers self-isolate for several days upon arrival from travel and test negative before ending self-isolation.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com or 202-659-6622); Drew Derco (dderco@eckertseamans.com or 202-659-6665), or Andy Orr (aorr@eckertsemans.com or 202-659-6625).
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