Airline COVID-19 Health Standards Remain Grounded While Holiday Travel Season Looms

The start of the holiday season—the busiest travel period in the United States—is just weeks away. Though the number of Americans taking to the skies this Thanksgiving is sure to be less than the 26 million travelers who passed through Transportation Security Administration checkpoints last year, passenger volume is nonetheless expected to surge.

However, potential travelers will have to weigh the risks of a COVID-19 resurgence against the range of travel options in an industry that remains largely outside the scope of any federally mandated COVID-19 safety regulations. The reticence to issue firm federal regulations to keep both passengers and workers safe has been a familiar narrative during this health crisis, and the airline industry has arguably been one of the most scrutinized segments of travel.

This unprecedented public health crisis begs the question: who is responsible for regulating passenger safety on airplanes as it pertains to COVID-19?

This is not a novel question. On March 14, 2020, in the early stages of the COVID-19 outbreak in the U.S., the Director of the Centers for Disease Control and Prevention (CDC) Dr. Robert Redfield issued a No Sail Order for all cruise ships operating within the United States, effectively shutting down cruise lines until further notice. In the No Sail Order, the Director rooted his decision in scientific information about the transmission of COVID-19 and on the powers granted to him as the CDC Director in 42 CFR § 71.32(b). Dr. Redfield justified issuing this federal mandate as he determined that the scope of this pandemic “cannot be controlled sufficiently by the cruise ship industry or individual state or local health authorities.”

However, the federal government has enacted no other substantive regulatory measures on other sectors of the travel industry during the course of the COVID-19 crisis. Instead, the CDC has opted for issuing non-binding COVID-19 safety guidelines for different industries, leaving sectors, such as the airline industry, to individually self-regulate.

The result of this recommended guidelines approach is a wide array of safety policies that differ between airlines with no legal mechanism for enforcement, meaning that the repercussions for consumer noncompliance extend only as far as what is within the company’s power to implement (e.g. denying service, customer banning, etc.). Furthermore, this range of options forces the consumer to compare health and safety measures between available choices or settle for the only option available to them.

Opponents to national standards often cite a disdain for government regulations as a driving factor for inaction. The Department of Transportation (DOT) recently denied a petition requesting the implementation of a nationwide mask policy for airports and air travel under their rule making powers found in 5 U.S.C. § 553(b)(3)(B). In DOT’s response, General Counsel Steven Bradbury stated his reasons for the denial being that guidelines recommending masks already exist, most air carriers have enacted mask policies, and DOT “embraces the notion that there should be no more regulations than necessary.”

Similarly, the New York Times reported that the CDC drafted a mandate last month that would require masks on all commercial and private transportation. The mandate was rooted in the CDC’s quarantine powers found in 42 USC § 264, 268, and was backed by the Secretary of Health and Human Services (HHS) Alex Azar II. However, the White House reportedly blocked the mandate, instead deferring to state and local authorities to issue their own guidance; Vice President Pence “declined to even discuss [the mandate]” with the White House Coronavirus Task Force.

This vacuum of federal safety regulation has led to a patchwork of self-regulation between industries and state officials attempting to establish legal standards to allow for enforcement of these standards. Some states, such as Virginia, have taken it upon themselves to codify CDC guidelines to provide legal standards for businesses and individuals alike whereas other states continue to pass the responsibility of public safety off to industries and individuals.

For interstate industries such as airlines, differing state and company standards are not sufficient to effectively manage the risks COVID-19 presents. Yet, a path toward the creation of national safety standards and a means of enforcement does exist. The CDC, DOT, HHS, and the president are provided various statutory powers while Congress has the ability to pass legislation—similar to some legislation passed at the state level—to create a national set of safety standards for certain industries.

As we approach the 2020 holiday travel season amidst the backdrop of a global pandemic, it is abundantly clear that the airline industry and the American people would be better served by a set of national safety regulations for air travel. The implementation of national safety regulations will provide the airline industry with means of legal enforcement for noncompliance, restore confidence in air travel, and provide airlines the best guidance from health experts to ensure consumer safety.