On January 21, 2021, the day after his inauguration, President Joe Biden signed an executive order (E.O. No. 13998) requiring, inter alia, the wearing of masks on transportation conveyances. This order was implemented by the U.S. Centers for Disease Control (CDC), by order issued on February 1, 2021, under Section 361 of the Public Health Service Act. The CDC order mandates wearing masks by all persons (including employees and crews) “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 U.S. and foreign air carriers. The CDC order imposes an obligation on carriers and airport operators to enforce these requirements through “best efforts,” which include:

• Boarding or admitting only those persons who wear masks;
• Instructing individuals that federal law requires wearing a mask on the aircraft or within the airport;
• Monitoring persons while on board or in the airport;
• Disembarking or removing from the premises persons who refuse to comply;
• Providing adequate notice of the mandate to the public, including on websites.

Naturally, there are certain exceptions, such as while eating, drinking, or taking medications, if wearing an oxygen mask is necessary due to pressure loss, if unconscious, or when removal is required by the Transportation Security Administration (TSA), ticket or gate agent, or law enforcement to verify a person’s identity. Further, the CDC order exempts persons under the age of two years, 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 …” (ADA). The TSA also issued a security directive on January 31, 2021, intended to implement and enforce the executive order and CDC order. Notably, 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 they apply to both U.S. and foreign airlines. They have the advantage of taking the burden off air carriers of making their own, sometimes inconsistent, policies about mask wearing; now carriers can simply tell their passengers that masks are required by federal law, just like wearing seatbelts or not smoking on the aircraft. This should make it easier for carriers to enforce practices that protect their own employees as well as other passengers.

The complication comes, however, where the CDC mask mandate intersects with the legal rights of airline passengers with qualifying disabilities. The CDC order makes reference to persons with disabilities as defined in the ADA. In fact, air carriers are subject to the Air Carrier Access Act (ACAA) (49 U.S.C. § 41705), as implemented through copious regulations issued by the Department of Transportation (DOT) in 14 CFR Part 382. DOT has long been zealous in enforcing the rights of persons with disabilities. In general, air carriers are required to make reasonable accommodation for passengers with disabilities. Not surprisingly, 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 most of these claims are spurious and, in any event, they are not able to make the necessary determination when the passengers are about to be boarded.

Thus, air carriers are required to walk the fine line between complying with the broad CDC and TSA mandates, and accommodating passengers with a disability whose disability prevents them from wearing a mask. To guide carriers in this delicate task, DOT’s Office of Aviation Consumer Protection issued, on February 5, 2021, a “Notice of Enforcement Policy” describing what that office will take into consideration in deciding how to enforce these potentially conflicting obligations.

The notice states that some carriers have adopted “no exceptions” mask rules. That, of course, puts them on a collision course with DOT, 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 making a determination whether or not to carry a passenger, even if that passenger has a legitimate disability-based reason for not masking. The DOT’s guidance is in line with that provided in the CDC and TSA directives, even though those directives didn’t take into account the more stringent requirements of the ACAA.

The DOT 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.” (See 14 CFR § 382.19(c).) 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 different time when flights or airports are less crowded.

Note that 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; nor would it be permitted for them to adopt a “no exceptions” policy.

DOT indicates that it will refrain from enforcement actions against airlines on account of their masking policies for a period of 45 days from the date of the notice, as a matter of prosecutorial discretion. Carriers should take advantage of this period to review their policies and practices and determine how to thread this needle. It will not be easy.