U.S. Airlines Can’t Really Get Tough On Requiring Face Masks Without Action By Trump Administration

Fasten your seatbelt, stow your tray table – and ensure your face mask is on.

Facial coverings should be routine for travel, but the U.S. needs more action than the splashy airline announcements this week that promise a harder line on getting passengers to wear masks but lack legal basis.

United Airlines threatened the steepest consequence of banning passengers who do not wear a mask. “There’s no substance to it,” says travel analyst Henry Harteveldt, co-founder of Atmosphere Research Group. “It’s health safety theater.”

United’s policy relies on flight attendants writing-up noncomplying passengers to headquarters. Flight attendants doubt management action, as Harteveldt describes: “Whose word are they going to take – mine or the 1K?”

Airlines may be reluctant to ban elite frequent fliers like a United “1K” while demand is ravaged. United is offering only 30% of capacity in July compared to last year. More bullish is American Airlines – but it’s still well down, scheduling 55% of capacity.

Any airline action is without government backing. There are federal laws requiring passengers to fasten their seatbelt and not smoke, but nothing mandating masks.

American Airlines stepped up rhetoric on face mask compliance earlier this week, as did industry group Airlines for America, which represents most U.S. carriers. Delta Air Lines has yet to change its stance — unusual since Delta usually moves first.

U.S. airlines are not following Lufthansa in modifying their conditions of carriage to require face masks.

That’s a discrepancy with United threatening to ban passengers. “Normally how they blacklist is incorporated in the contract of carriage,” says June Lee, an assistant law professor specializing in aviation at the Chinese University of Hong Kong.

Rebuilding traveler confidence

“There are a lot of people out there who are scared to fly,” Harteveldt says. Travelers are put off by social media posts of crowded flights with few masks. Consistent mask wearing could instill confidence.

Transportation Secretary Elaine Chao understands the airline predicament, telling a Politico webinar: “They realize that they cannot recover without public trust.”

Yet Secretary Chao’s department – and every other federal agency – is not mandating masks as other countries have done.

A passenger was fined €300 for not wearing a mask on a flight to Amsterdam. Masks have to be worn on a subway, bus, taxi or aircraft in South Korea under a law introduced last month. China advises on a route-by-route basis if flight crew should wear a standard surgical mask or N95, and after how many hours they should put on a new covering.

Government inaction

Political interference is the assumed dilemma in the United States. President Trump refuses to wear a face mask and the CDC has watered down face mask guidance.

 “I think Secretary Chao is trying to find a solution between not incurring the wrath of the President and doing something – that’s something with a little s – to protect travellers and staff,” Harteveldt says.

Secretary Chao is openly wiping her hands of a mask requirement. “It was originally suggested that the federal government mandate the use of masks,” she said. Instead she encouraged airline management and labor unions to work out a message for passengers. “I think it is better to be resolved between parties of mutual concern.”

It’s not resolved without federal action, according to United flight attendant Susannah Carr, who represents the Association of Flight Attendants.

“This is a company policy, which unfortunately means that we don’t have the federal backing,” Carr told a House hearing. “If a passenger takes [a mask] off the most that I can do is ask them to put it back on. We need a federal mandate that states you must wear this onboard the aircraft.”

Chao has sought to evade responsibility. “When the federal government gets involved we tend to be much more heavy-handed. We tend to be inflexible. And once we put a rule in place, it takes a long time to remove that rule if the conditions change.”

Critics might argue inflexibility is the point. A temporary order could suffice instead of permanent law.

Airlines can create legal basis

The House Democrats’ new bailout bill, the HEROES Act, mandates passengers wear masks, but the package has faced a cool reception from Senate Republicans.

Harteveldt is giving up on government action. “I think the airlines are going to have to fend for themselves,” he says.

“Any airline that doesn’t modify its contract of carriage to require masks at the airport and on flights means it’s allowing its passengers to be at risk of becoming sick,” Harteveldt says. “It’s 100% wrong and shameful.”

Changing the contract of carriage, as Lufthansa is doing, is banal. United changed its contract early in COVID-19 to have a stricter refund policy, and more recently to deny boarding if United thinks a passenger was exposed to a communicable disease like COVID-19.

But incorporating a face mask requirement, Lee says, means airlines would have to defend their rule rather than cite federal law. Government agencies also want to piggyback.

Pass the buck

“The FAA claims they have no authority over health on airplanes, which is not true,” Representative Peter DeFazio said at the House hearing. “They say they have to get it from OSHA, and OSHA says that have to get it from CDC, and it’s not forthcoming.”

Harteveldt has a simple summary: “It goes back to when we’re kids. Everyone wants someone else to be the first to do something – go in the water, ask to dance.”

FAA administrator Stephen Dickson says passengers should follow “guidelines” about wearing face masks, according to pre-released testimony he will give to the Senate on Wednesday. But critics says guidelines are not law, and thus unenforceable.

DeFazio said airlines need legislative support. “They don’t want to criminally prosecute their passengers as opposed to if we have a federal mandate.”

Bailout, masks in

Giving a $50 billion bailout to aviation and then ignoring if passengers feel safe to fly isn’t logical, Harteveldt says. “The government has a fiduciary duty to its taxpayers to ensure airlines create confidence amongst the travelling public.”

Absent changes in federal law or conditions of carriage, Lee wonders if airlines could mandate masks under the Montreal Protocol of 2014 dealing with disruptive passengers.

“If you repeatedly don’t follow the crew message it could be categorized as unruly behaviour,” Lee says for airlines in the U.S. “For other countries it’s relatively easy to use law.”

Masks are just the start

Loose airline policy and government departments unwilling to coordinate or take action does not bode well for upcoming health protocols.

The U.S. has been playing catch-up. In the early days of the outbreak, U.S. airlines prohibited staff from wearing face masks.

Passenger face masks were a basic policy for other countries. They moved on to temperature screening and requiring passengers at check-in produce evidence of a negative COVID-19 test, or to take a test in the airport.

U.S. airlines expect TSA should handle increased health screening, but representative Dina Titus says the government has not protected agents enough.

Too much focus may be on traveler freedom. “The passenger may have to take one flight in a day. The flight attendant may work three or four segments,” Harteveldt says. There is also the health of airport workers to consider.

Airlines need to stop having flight attendants act as the onboard sheriff. Their latest policies may increase cabin conflict as flight attendants inform passengers of consequences. Harteveldt says flight attendants are telling him: “Great. I have to be the bad person.”

Passengers not wearing masks is still perplexing to Lee. “What’s the big deal? Maybe that sounds very Asian. You would want to guard yourself by wearing a mask.”

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