14 CFR Part 382 Nondiscrimination on the Basis of Disability in Air Travel (Air Carrier Access Act): Preamble and Section-by-Section Analysis (with amendments issued through July 2010)

382.21 May carriers limit access to transportation on the basis that a passenger has a communicable disease or other medical condition? As a general matter, carriers may not exclude or impose other requirements or conditions on a passenger on the basis that the passenger has a communicable disease. However, if the passenger poses a direct threat, the carrier may take appropriate action to safeguard the health and safety of other persons on the flight.

The Department has added regulatory language codifying the Department’s guidance on how airlines should determine whether someone’s disease presents a direct threat. To be a direct threat, a condition must be both able to be readily transmitted by casual contact in the course of a flight AND have severe health consequences (e.g., SARS, active tuberculosis). If a condition is readily transmissible but does not typically have severe health consequences (e.g., the common cold), or has severe health consequences but is not readily transmitted by casual conduct in the course of a flight (e.g., HIV), its presence would not create a direct threat. Carriers may also rely on directives issued by public health authorities (e.g., in the context of a future flu pandemic).

If a passenger who is deemed to present a direct threat cannot travel at his or her scheduled time as a result, the carrier must allow the passenger to travel at a time up to 90 days from the date of postponed travel at the same price or, if the passenger prefers, provide a refund. Consequently, cancellation or rebooking fees or penalties would not apply in this situation, and the passenger would not be subject to any fare increases that may occur in the meantime or any increase in that passenger’s fare due to the non-availability of a seat in the fare class on his or her original ticket.