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)

382.23 May carriers require a passenger with a disability to provide a medical certificate? Like the medical certificates section in the current rule, this section generally prohibits carriers from requiring medical certificates (i.e., written statements from a doctor saying that a passenger is capable of completing a flight safely, without requiring extraordinary medical assistance during the flight). People with disabilities have functional impairments with respect to walking, seeing, hearing etc. These impairments, by and large, are not sicknesses requiring medical treatment or clearance (though, of course, persons with disabilities can have illnesses like everyone else). At the same time, airlines and their personnel are not medical service providers, and it is not reasonable to expect them to perform medical services. This provision is intended to balance these realities.

Oxygen users and people traveling in a stretcher or incubator can be required to produce a medical certificate. The situation that most commonly would result in a call for a medical certificate is one in which carrier personnel have a reasonable doubt that someone can complete the flight safely, without requiring extraordinary medical assistance. In such a case, carrier personnel can require a medical certificate in order to provide assurance that the passenger will not need such assistance. The rule clarifies that a medical certificate must be recent (within 10 days of the passenger’s departing flight).

There is also a relationship between this section and the communicable diseases provision. Section 382.21(a)(4) allows a carrier to require a medical certificate if the carrier determines that the passenger has a communicable disease that could pose a direct threat. Under section 382.23(c), the passenger would then have to produce a medical certificate, to the effect that the passenger’s condition would not be communicable to other persons during the normal course of the flight. If it is potentially transmissible during the flight but this can be prevented if certain conditions or precautions are implemented, the certificate would have to describe those conditions or precautions. Unlike the situation with respect to medical certificates under paragraph (b)(3), a medical certificate in the situation of a communicable disease under paragraph (d) would have to be dated within 10 days of the flight for which it is presented (not 10 days prior only to the passenger’s initial departing flight). Under paragraph 382.21(c), if the section 382.23(c)(2) medical certificate provides measures for preventing the transmission of a disease, the carrier must provide transportation to the passenger – carrying out the prescribed measures – unless the carrier determines that it is unable to carry out the measures. If the carrier is unable to do so, it can deny transportation to the passenger. In this event, the carrier’s written explanation to the passenger under section 382.21(e) would include an explanation of why it was not able to carry out the measures identified in the medical certificate.

A carrier may elect to subject a passenger with a medical certificate to additional medical review (e.g., by the carrier’s physician) if the carrier believes either that there has been a significant adverse change in the passenger’s medical condition since the issuance of the medical certificate or that the certificate significantly understates the passenger’s risk to the health of other persons on the flight. If this additional review shows that the passenger is unlikely to be able to complete the flight without extraordinary medical assistance or would pose a direct threat to other passengers, the carrier could, notwithstanding the medical certificate, deny or restrict the passenger’s transportation.

We also note that, under section 382.117(e), airlines can require passengers traveling with emotional support or psychiatric service animals to provide certain documentation. This information is not a medical certificate in the sense articulated in section 382.23, but airlines are entitled to obtain this documentation as a condition of permitting the emotional support or psychiatric service animal to travel in the cabin with the passenger.