After considering whether to implement a COVID-19 testing requirement for domestic travel, including air travel, the United States Centers for Disease Control and Prevention (“CDC”) recently stated that it is not recommending point of departure COVID-19 testing for U.S. domestic travel. Federal officials had indicated that the CDC was considering a rule that would require all U.S. domestic flyers to test negative for COVID-19 prior to boarding a domestic flight. However, following industry opposition, including opposition from U.S. based air carriers, the CDC stated that it was not recommending point of departure COVID-19 testing prior to domestic travel. The statement by the CDC follows its January 29, 2021 Order which requires the wearing of masks by travelers.
The CDC’s January 29, 2021 Order Requiring the Wearing of Masks by Travelers
At the end of January, the CDC issued its January 29, 2021 Order requiring that masks be worn by travelers. This was in response to President Biden’s Executive Order of January 21, 2021 directing federal agencies to take action to require masks be worn in or on airports, aircraft, trains, maritime vessels, and all forms of public transportation (“Executive Order on Promoting COVID-19 Safety in Domestic and International Travel”). The Order also requires conveyance operators, such as airlines and cruise operators, to only transport persons wearing masks and requires these operators to use best efforts to ensure that travelers wear masks while embarking, disembarking and throughout the duration of the travel. The Order also requires that transportation hub operators, such as airport or marine port operators, use best efforts to ensure that any person on the premises of the transportation hub, such as an airport or marine port, wears a mask.
Specifically, pursuant to 42 U.S.C. § 264(a) and 42 C.F.R. §§ 70.2, 71.31(b), and 71.32(b), subject to limited exceptions in the Order (such as exemptions for medical issues) a person must wear a mask while boarding, disembarking, and traveling on any conveyance into or within the United States. Per the Order, a conveyance includes “an aircraft, train, road vehicle, vessel… or other means of transport.” A person must also wear a mask at any transportation hub that provides transportation within the United States. A “transportation hub” means any airport, bus terminal, marina, seaport or other port, subway station, terminal, train station, U.S. port of entry, or any other location that provides transportation subject to the jurisdiction of the United States.
As part of this Order, in order to enter a U.S. port, disembark passengers, and begin operations at any U.S. port of entry, conveyances arriving into the United States must require persons to wear masks while boarding, disembarking, and for the duration of the travel. Conveyance operators departing from the United States must also require all persons to wear masks while boarding and for the duration of their travel until the conveyance arrives at the foreign destination, if any of the persons onboard (passengers, crew, or conveyance operators) will return to the United States while the Order remains in effect.
CDC Guidance on What Constitutes a Mask
The January 29, 2021 Order makes clear that wearing a mask means covering both the nose and mouth and it does not include face shields, scarves, ski masks, balaclavas or bandanas. Additional CDC guidance for acceptable masks and mask guidance in the context of the Order is available at https://www.cdc.gov/quarantine/masks/mask-travel-guidance.html
Exceptions to the Mask Requirement for Travelers
Pursuant to the CDC’s Order, the requirement to wear a mask shall not apply under the following circumstances:
- While eating, drinking, or taking medication, for brief periods;
- While communicating with a person who is hearing impaired when the ability to see the mouth is essential for communication;
- If, on an aircraft, wearing of oxygen masks is needed because of loss of cabin pressure or other event affecting aircraft ventilation;
- If unconscious (for reasons other than sleeping), incapacitated, unable to be awakened, or otherwise unable to remove the mask without assistance; or
- When necessary to temporarily remove the mask to verify one’s identity such as during Transportation Security Administration screening or when asked to do so by the ticket or gate agent or any law enforcement official.
The CDC’s Order also exempts:
- A child under the age of 2 years;
- A person with a disability who cannot wear a mask, or cannot safely wear a mask, because of the disability as defined by the Americans with Disabilities Act;
- A person for whom wearing a mask would create a risk to workplace health, safety, or job duty as determined by the relevant workplace safety guidelines or federal regulations.
The CDC’s Order also exempts private conveyances, commercial motor vehicles or trucks as defined by 49 C.F.R. § 390.5, if the driver is the sole occupant of the vehicle or truck, and it exempts conveyances operated or chartered by the U.S. military services.
Enforcement of the CDC’s January 29, 2021 Order
The CDC’s Order, consistent with President Biden’s Executive Order of January 21, 2021, requires federal agencies to implement additional measures enforcing the provisions of the Order. The Order also states that it shall be enforced by the Transportation Security Administration as well as other federal authorities, and it may be enforced by the cooperating state and local authorities. Although the Order may be enforced through criminal penalties, the Order states that the CDC does not intend to rely primarily on criminal penalties but instead strongly encourages and anticipates widespread voluntary compliance and as well as support from other federal agencies in implementing additional civil measures enforcing the Order.
Effective Date of the CDC’s January 29, 2021 Order
This Order became effective on February 1, 2021 at 11:59 p.m.
The CDC’s January 29, 2021 Order can be found here:
The CDC’s Guidance on the wearing of face masks while on conveyances and at transportation hubs can be found here:
A discussion of the CDC’s recent statement that it was not recommending point of departure COVID-19 testing for U.S. domestic travel is located here: