American Airlines and Southwest Airlines will no longer offer medical or other exceptions to their mandatory face mask policies. All passengers two and over will be required to wear a mask for the duration of the travel journey, both on the ground and in the air. But is the disallowance of any medical exceptions to wearing mask legal?
American + Southwest Both Eliminate Medical Exceptions To Mandatory Mask Policy
Up until now, you could claim you could not wear a face covering for “medical” reasons and no one would really question you as long as you were not being obviously obnoxious about it. Not any longer.
That’s right. Effective July 27, 2020 on Southwest and July 29, 2020 on American, all passengers aged two and older will be required to wear a mask. No exceptions.
The American Airlines press release and webpage on masks does not address medical exceptions, so I asked AA on Twitter. The reply could not have been clearer:
Is This “No Medical Exceptions” Mask Policy Legal?
The Air Carrier Access Act prohibits discrimination on the basis of disability in air travel. But there’s a fairly wide exception that should shield airlines from any liability here for violating passenger rights. From the U.S. Department of Transportation:
“While airlines may not refuse transportation to people on the basis of disability, airlines may exclude anyone from a flight if carrying the person would be inimical to the safety of the flight. If a carrier excludes a person with a disability on safety grounds, the carrier must provide a written explanation of the decision.”
“Inimical” means harmful.
Specifically, §382.19-21 holds that carriers can limit access to transportation on the basis that a passenger has a communicable disease, other medical condition, or simply a disability if the following conditions are met:
(1) You can determine that there is a disability-related safety basis for refusing to provide transportation to a passenger with a disability if you are able to demonstrate that the passenger poses a direct threat. In determining whether an individual poses a direct threat, you must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain:
(i) The nature, duration, and severity of the risk;
(ii) The probability that the potential harm to the health and safety of others will actually occur; and
(iii) Whether reasonable modifications of policies, practices, or procedures will mitigate the risk.
(2) If you determine that the passenger does pose a direct threat, you must select the least restrictive response from the point of view of the passenger, consistent with protecting the health and safety of others. For example, you must not refuse transportation to the passenger if you can protect the health and safety of others by means short of a refusal.
Airlines may only request a medical certificate for passengers “whose medical condition is such that there is reasonable doubt that the individual can complete the flight safely, without requiring extraordinary medical assistance during the flight.” (§382.23). But there’s another exception in §382.23(c)(1):
“You may also require a medical certificate for a passenger if he or she has a communicable disease or condition that could pose a direct threat to the health or safety of others on the flight.”
So we’ve established it is legal to ban passengers who refuse to wear a mask, but how will this turn out practically? Which agency would be responsible if a passenger is turned away and becomes combative? Airport police? TSA? DHS? Should the TSA be gatekeepers and not allow anyone past a security checkpoint not wearing a mask? Should police be posted at entrance to airports ensuring every traveler is wearing a mask? These details remain to be worked out.
American and Southwest have thrown down the gauntlet on wearing masks. Those medically unable to wear masks will need to fly another airline. And those with young children better ensure those little ones can keep their masks on during travel…
What are your thoughts on eliminating medical exemptions for mandatory mask policies?