On American Airlines flight 512 LAX-JFK on June 20, every seat was occupied despite the airlines’ assertions that middle seats would go unsold, and the crew did not enforce mask wearing during boarding or flight. (Courtesy photo)

Flying in the COVID-19 era

Airlines are having a difficult time adapting to the new world of travel

The U.S. and other countries are starting to gradually open up in the immediate aftermath of their lockdowns. Many of us are itching to get back on a plane, though only when safe. While some must travel by air for work, school or family matters, others wish to take to the not-so-friendly skies for tourism as destinations reopen.

As we think about air travel and rethink risk levels, I have invited aviation lawyer Jeffrey Ment “on board” to my column, virtually of course, for a conversation.

Julie: Good morning Jeff. To say that these are strange travel times would be an understatement. Both domestic and foreign flag carriers are now slowly restarting their routes. Not of course without hiccups and some are serious. Some domestic carriers, namely Delta and JetBlue, vowed to keep middle seats empty and are making good on their promises. Others, like American Airlines, state they will, then they fly at full capacity. Without specific direction from the Federal Aviation Administration regarding flight loads and mask wearing, is the health of air travelers simply at the mercy of airline bean counters?

Jeff: Airlines are having a difficult time adapting to the new world of travel. FAA oversight only goes so far, then it is up to each airline, or sometimes, global alliances, to try and figure out how to operate. Public shaming is also a way to force change in the airline industry. Airlines have a lot at stake now that flying is seeing a slight uptick. Margins are razor thin and business travel, often with higher ticket prices, hasn’t really seen a sharp rise. So, bean counters are surely important inside airline c-suites; however, the public and power of social media have a say as well.

Julie: I haven’t been on a plane since March 8. My daughter, however, flew twice on American Airlines in the past month. Both flights were 100 percent full despite adamant assertions by AA’s call centers – including on the day of travel – that this would not be the case. For the LAX-JFK flight, AA even contacted her last Friday requesting she fly on Saturday, since her Sunday reserved flight was overbooked. At Saturday’s boarding, not only was every seat occupied, crew was not requiring passenger face masks. While understandably, crew would not relish the task of being aero-cops, why wouldn’t they insist passengers wear masks since they obviously can’t social distance? Even or especially for crew health?

Jeff: Airlines are beginning to hold the line – passengers are being arrested, off-loaded or placed on airline no-fly lists for failing to comply. Flight attendants, however, need the support of the airlines – often the airline later blames the flight attendant in efforts to woo back a customer who has complained. It’s time to empower flight crews and let them know that the company “has their back.”

Julie: What if one of these passengers on a packed, non-mask wearing flight later tests positive for COVID-19? Does the airline have any liability? Or does the assumption-of-the-risk doctrine completely absolve them? What about where the airline says one thing to generate ticket sales and does something else at boarding?

Jeff: I can’t see blaming the airlines if and when this happens. The point of contracting an invisible virus is impossible. Imagine all of the potential defendants – the Uber you took to the airport, the airport authority that cleans the bathrooms, the newsstand where you bought a water bottle, etc. So, no I don’t see the floodgates of litigation opening against airlines. Everyone knows the risks these days. It’s not as if the airline knows a secret and is trying to hide it.

Julie: It’s also no secret that wearing a mask significantly reduces transmission. While there may be many potential vector/touch points to and at the airport, packing 300 unmasked passengers into a tin can at 30,000 feet seems a veritable Petri dish for transmission. Until such time as COVID-19 vaccines are readily available, do you foresee the FAA promulgating regulations regarding flight loads? And mask use?

Jeff: Airlines would likely relish some government support with regard to health and safety rule promulgation. Airlines often adopt the “monkey see, monkey do” strategy but often, no carrier wants to go first with a new policy that could backfire from a marketing perspective. I saw that Delta’s global alliance – SkyTeam – has announced its new SkyCare & Protect Safety Pledge. Without doubt, other alliances will unveil similar plans in the coming days. That’s great news for the flying public. However, airlines will cry foul over federal oversight on their bottom line. So regulations about load factors are unlikely.

Julie: It seems that some foreign flag carriers are dealing with this better. Qatar Airways, AirAsia and Philippine Airlines cabin crew wear full Personal Protective Equipment over their uniforms, including safety goggles. COVID-19 numbers in the U.S. are so high, both cases and death tolls, yet U.S. crew isn’t required to wear PPE. Why is that?

Jeff: U.S. carriers often lag behind the foreign flagged carriers and I don’t think our carriers will adopt any similar protocols. The “look” would not do much to encourage travel. Rather, the spectacle of full-PPE wearing flight crew would scare passengers.

Julie: Personally I’d rather be scared than dead. Do you think the TSA will finally issue regulations requiring masks for all domestic airport terminals despite that some American travelers will push back?

Jeff: Yes, again, airports and airlines need the government to step up, lay down the law and then enforce it. It’s easy to say a law mandates something rather than a local airport policy. A recent TSA whistleblower has complained that TSA isn’t doing enough to protect its workers. Undoubtedly, we will soon see more rule-making and enforcement.

Julie: It’s a terrible time to be an airline employee. Some U.S. carrier employees were asked to take early retirement, others were furloughed without pay. Yet there are those who believe that wearing a face mask infringes on their personal freedoms. I read recently that a Connecticut lawyer filed a lawsuit on just this point. Do you think our Constitution includes the right to be an asymptomatic vector?

Jeff: No. While I certainly believe in governmental restraint in certain circumstances, health and safety isn’t one of them. Lawsuits like the one you mention are akin to publicity stunts – no one can seriously believe that case will go anywhere. Conspiracy theorists abound in all settings. However, in the case of a worldwide pandemic with surges and deaths skyrocketing, wear the mask or don’t fly.

Julie: Do you have an upcoming flight now on your own calendar?

Jeff: Headed to Austin, Texas, via Dallas on July 17! I’ll let you how it goes!!

Julie: I hope you’re not flying American Airlines. Safe travels!

Julie L. Kessler is a journalist, attorney and legal columnist based in Los Angeles and the author of the award-winning travel memoir “Fifty-Fifty: The Clarity of Hindsight.” Julie can be reached at www.VagabondLawyer.com.

Jeffrey Ment, an aviation and travel attorney with offices in New York and Connecticut, can be reached at www.mentlaw.com.

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