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25 March 2020
The Department of Transportation (DOT) recently issued Enforcement Notice Regarding Denying Boarding by Airlines of Individuals Suspected of Having Coronavirus (or COVID-19).
Under the DOT's regulations relating to individuals with disabilities, if a passenger is suspected of having a communicable disease, an airline may not limit transportation unless the passenger's condition poses a "direct threat" to the health or safety of others. Although airlines are permitted to deny boarding based on a well-founded direct threat assessment, airlines must accept a medical certificate identifying alternative measures for preventing transmission, unless the airline cannot carry out the measures. An airline may require a passenger with a medical certificate to undergo an additional medical review if there is a legitimate reason for believing that there has been a significant adverse change in the passenger's condition since issuance of the medical certificate or that the certificate significantly understates the risk the passenger poses to the health of other persons on the flight.
In the case of COVID-19, the enforcement notice acknowledges that medical certificates are unlikely to demonstrate whether a passenger is a direct threat, especially as there are no known measures that would prevent transmission of COVID-19 in the cabin's closed environment. As a result, the enforcement notice notes the following.
Because the regulation is silent on whether airlines may make the direct threat assessment through screening passengers directly, airlines may choose to do so for passengers seeking to travel to the United States from countries with travel health notices issued by the Centers for Disease Control and Prevention stemming from an outbreak of COVID-19 (currently in China, South Korea, Iran and Italy). The screening may consist of checking passengers' temperature for fever prior to boarding or other measures that would help airline personnel determine whether an individual may have symptoms of COVID-19.
If an individual seeking to travel is found to have a fever or reports having a fever or shortness of breath and an airline refuses boarding, the DOT will use its enforcement discretion not to enforce the requirement that airlines must first ask for a medical certificate before denying boarding to that passenger.
The DOT cautioned that its enforcement policy does not alter airline obligations to passengers who have their travel postponed, including:
For further information on this topic please contact Rachel Welford or Matthew J Howell at Cozen O'Connor by telephone (+1 202 912 4800) or email (email@example.com or firstname.lastname@example.org). The Cozen O'Connor website can be accessed at www.cozen.com.
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