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)

Medical Certificates/Communicable Diseases

The Foreign Carriers NPRM proposed to continue, and apply to covered flights of foreign carriers, the existing Part 382 limits on the extent to which carriers can exclude or restrict passengers with communicable diseases and the situations in which carriers can require a passenger to get a medical certificate from a physician before traveling.

Many air carrier comments asked for greater guidance on how to apply the provisions of these sections. Some of these suggested incorporating past DOT guidance that spelled out that a combination of severity of health consequences and easy transmission of a disease in the aircraft cabin environment would create an appropriate situation for restrictions on an individual’s travel and/or a requirement for a medical certificate. Commenters asked whether such conditions as the common cold, SARS, tuberculosis, or AIDS would meet the requirements of the proposed rule for permitting restrictions on travel or the requirement for a medical certificate. Some comments also asked how directives or recommendations from public health authorities would play into carrier decisions under the rule.

There were a number of comments about the concept of “direct threat,” which is defined as a significant risk to the health or safety of others that cannot be eliminated by a modification of polices, practices, or procedures or eliminated by the provision of auxiliary aids or services. Disability community commenters expressed the concern that use of this term -- derived from the Americans with Disabilities Act – would make it too easy for carriers to use their discretion to exclude passengers, perhaps in a discriminatory fashion. Some carriers believed, to the contrary, that it would make it too difficult to exercise the discretion they need to protect the health of travelers or that it would be too burdensome for their personnel to make judgments on this basis. A medical group suggested that a direct threat be defined as a condition that would be seriously exacerbated by the flight itself or a serious communicable disease that could be transmitted to another person in flight.

Some carriers questioned the objectivity or qualifications of a passenger’s physician to make a sound determination of whether it was safe for a passenger to travel. Some carriers preferred that their own medical staffs make these determinations, or at least have the ability to evaluate and override medical certificates provided by passengers’ physicians. Generally, carriers preferred to have wider discretion to restrict passengers’ travel than they perceived the provisions of the Foreign Carriers NPRM as giving them.

In response to comments, the Department has made some modifications in the final rule provisions on these subjects. We have included the substance of the DOT guidance. Under this provision, carriers would have the ability to impose travel restrictions and/or require a medical certificate if a passenger presented with a communicable disease that was both readily transmitted in the course of a flight and which had serious health consequences (e.g., SARS, but not AIDS or a cold). In addition, carriers could conduct additional medical reviews of a passenger and, notwithstanding a medical certificate, restrict travel under some conditions. This additional review would have to be conducted by medical personnel (e.g., members of the carrier’s medical staff or medical personnel to whom the carrier referred the passenger), and this provision is not a license for non-medically trained carrier staff to disregard medical certificates presented by passengers from their own physicians. Nor would it be appropriate for carrier staff to exclude or discriminate against passengers because the passengers’ appearance might disturb or upset other persons (see also sec. 382.19(b)).

Existing language of the regulation, which will be carried forward, permits a carrier to require a medical certificate from a passenger when there is reasonable doubt that the individual can complete the flight safely without requiring extraordinary medical assistance. This language accommodates the comment that one aspect of a direct threat is a passenger’s having a condition that would be seriously exacerbated by the flight itself. We disagree with a commenter’s assertion that a carrier should be able to ask for a medical certificate if any medical attention might be needed. This suggestion goes too far in the direction of granting carriers discretion to demand medical documentation for potentially minor medical conditions or for disabilities that do not entail any acute medical condition.

We have added language permitting carriers to rely on instructions issued by public health authorities (e.g., the U.S. Centers for Disease Control or Public Health Service; comparable agencies in other countries; the World Health Organization) in making decisions about carrying passengers with communicable diseases. For example, if CDC or WHO issues an alert or directive telling airlines not to carry a particular individual who poses a serious health risk (e.g., an individual with multiple drug-resistant tuberculosis), or persons exhibiting symptoms of a serious health condition (e.g., SARS), we would expect carriers to follow the public health agency’s instructions. Carriers could do so without contradicting the requirements of this Part.