March 27, 2020

Below are current requirements and restrictions divided by U.S. federal agency:

  • The White House / U.S. Department of Homeland Security (DHS):

This month, the U.S. extended its foreign national entry bans to cover passengers who have been in mainland China (excluding Hong Kong and Macau), The Islamic Republic of Iran, the European Schengen Area, The United Kingdom (excluding overseas territories outside of Europe) and The Republic of Ireland in the last 14 days.  Foreign carriers should continue to follow the directions given by their Transportation Security Administration International Industry Representative (TSA IIR), which were distributed via emergency directive, and must not board passengers on flights to the U.S. who are inadmissible under the presidential proclamations.  Carriers are free to ask passengers to sign a declaration stating they have not been in a restricted country for the prior 14 days.  We would recommend this practice if it is feasible, as it will provide affirmative documentation that the passenger confirmed they were permitted to travel to the U.S., and could assist the airline in avoiding a penalty if a prohibited passenger lied on the form but is inadvertently transported to the U.S. based on the assertions made to the airline. 

  • U.S. Department of Transportation (DOT):

Passengers who are denied boarding based on COVID-19 or their travel history must receive a DOT 10-Day Letter as is required under 14 C.F.R. Part 382.

  • U.S. Department of Health and Human Services (HHS) – Centers for Disease Control and Prevention (CDC):

Health Declaration Forms

DHS, in collaboration with CDC, is requiring each traveler coming from a country for which the U.S. has applied entry restrictions due to COVID-19 to fill out a “United States Traveler Health Declaration” form (now available in English, Mandarin, Farsi, Spanish, and Italian, and subject to update on CDC’s website as travel restrictions evolve).  The form must be completed by each passenger and provided to CDC/DHS representatives upon arrival at an approved screening airport.  Additionally, cabin crew should make an announcement to passengers before landing using the CDC’s suggested script (available in English at this link).

Passenger Health Data Reporting Requirements

As was the case before the COVID-19 crisis, CDC regulations under 42 C.F.R. Part 71 require the captain of any flight arriving in the U.S. to report the death or illness of any crewmember or passenger to the CDC quarantine station nearest the arrival airport.  (A detailed description of the symptoms of illness triggering the reporting requirement is available at this webpage.)  In the event the CDC needed to track and follow up with a passenger who was ill, the agency could instruct an airline to provide “contact tracing” data (e.g., name, address, phone number, flight numbers, etc.) on that passenger according to 42 C.F.R. 71.4 sections (a) through (c).  Both of these requirements remain in effect.

Last month, the CDC implemented new requirements relating to flights arriving in the U.S. from mainland China.  The CDC published an Interim Final Rule (IFR) effective February 7, 2020, that added two more sections (d) and (e) to 42 C.F.R. 71.4 to give the CDC authority to demand air carriers produce five contact tracing data elements on passengers or crew in a format acceptable to the CDC Director within 24 hours of such a demand.  The CDC followed this IFR with an implementing Data Collection Order on February 18, 2020, and a Frequency Asked Questions (FAQ) post on its website on February 27, 2020.  These documents explained that carriers would need to input contact tracing data into their PNR systems for passengers (but not crew) who had been in or transited mainland China within the past 14 days before attempting to enter the U.S.  These requirements remain in force for passengers arriving from China. 

Carriers and industry groups have strongly advocated for data reporting methods which would be more technically feasible than copying data into a PNR.  Perhaps in response to this feedback, the CDC has not yet issued a Data Collection Order extending the IFR’s requirements to passengers who have been present in Iran, the Schengen Area, the UK, and Ireland in the past 14 days.  Therefore, carriers are not required to input contact tracing data into PNR systems for these travelers at this time.  Instead, the U.S. government appears to be relying on health entry screening at airports, the “United States Traveler Health Declaration” form described above, and instructions to arriving passengers to self-quarantine for 14 days at home, to ensure that it captures tracing data and protects U.S. public health.  We expect the CDC’s rules on passenger health data reporting to continue to evolve and will keep our readers apprised.

Other Relevant Guidance

The CDC maintains other best practice guidance resources on its website (available at this link) for U.S. and foreign air carriers.  Except where the CDC refers explicitly to a legal requirement (e.g., sick passenger reporting under 42 C.F.R. 71.4), these best practices do not carry the force of law and can be implemented to the extent not inconsistent with instructions from a carrier’s civil aviation authority.  The CDC guides provide helpful information for both foreign and domestic carriers regarding infection control (available at this link), and new this month, recommendations regarding crew protection and aircraft cleaning related to SARS-CoV-2 coronavirus (available at this link).  Good practice described in this guidance includes:

  • Emphasis on routine handwashing;
  • Steps to take after identifying sick passengers;
  • Procedures for cleaning up bodily fluids;
  • Cleaning and disinfecting contaminated surfaces;
  • Following routine operating procedures for cleaning aircraft, managing solid waste, and wearing personal protective equipment (PPE) if no symptomatic passengers were identified during or immediately after the flight; and
  • “Enhanced Cleaning” procedures if symptomatic passengers were identified during or immediately after the flight.

Finally, last month, the CDC and U.S. Federal Aviation Administration (FAA) also collaborated on best practice guidance for air crew safety during the pandemic (available at this link).  Since air crew are exempt from entry restrictions in the U.S., the CDC encourages air crews to carefully observe their employer’s occupation health program to prevent the spread of COVID-19.

  • State/Local:

A number of states have imposed restrictions on individuals within the state, requiring them to stay home unless they are deemed “essential” – typically, if they work in an exempted or critical sector.  Many states, including New York, California, and Illinois have classified employees in the aviation sector as being exempt.

We are recommending that all businesses provide their employees “verification of critical employment” letters that each employee can carry to/from work.  While these letters are not currently required under the existing state restrictions, if there is any enforcement action or an inquiry, the letters will provide your employees with a valid response to any questions.  Also, the letters will give employees assurance that they are not doing anything unlawful by showing up for work.  If you would like assistance in drafting such a letter for employees, please contact us, and we will be happy to assist.

Finally, in addition to the letters we recommend you instruct employees to carry at all times:

  • Photo ID;
  • Employee ID (if permitted to carry employee ID off premises); and
  • Contact information for business/plant HR or management contacts.

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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Evelyn D. Sahr Photo Washington, D.C.

Evelyn D. Sahr

Member - Washington, D.C.

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Drew M. Derco Photo Washington, D.C.

Drew M. Derco

Member - Washington, D.C.

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Andrew P. Orr Photo Washington, D.C.

Andrew P. Orr

Associate - Washington, D.C.

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