By Linda Chiem

Law360 (August 5, 2020, 7:24 PM EDT) -- A push by lawmakers to establish a federal mask mandate for airline passengers and airport employees gives the aviation industry hope that hard-line rules are in the works to combat the spread of COVID-19 despite the Trump administration's reluctance to embrace such a mandate, experts say.

House Democrats last week floated legislation requiring all passengers to wear face masks on flights and in airports in an effort to minimize transmission of COVID-19, garnering support from labor unions and public health advocates, who've spent months lobbying for an outright face mask mandate instead of just recommendations.

Experts say the proposal puts more pressure on the U.S. Department of Transportation and the Federal Aviation Administration to implement stiff rules governing the use of face masks — which has become a divisive issue — and smooth out a patchwork of requirements and guidelines adopted by state and local governments, and businesses themselves.

"The industry has been asking the federal government to step in since the start of pandemic and provide clear and consistent guidance, but DOT and FAA have taken a hands-off approach while allowing the airlines to move forward with their own voluntary mask requirements," said Amna Arshad, special counsel in Freshfields Bruckhaus Deringer LLP's aviation group.

"A federally mandated mask requirement would create a clear and consistent uniform standard throughout the industry and lessen confusion among passengers given current conflicting standards and enforcement amongst the airlines," she added. "But if the government requires this with airlines, it should do so with other industries."

The Healthy Flights Act, put forth on July 30 by Democrats on the House Transportation and Infrastructure Committee, is intended to strengthen safeguards as air travel increases after months of government travel advisories and stay-at-home mandates. Nearly a dozen major industry groups and labor unions have backed the measure, including the American Association of Airport Executives, Air Line Pilots Association, Association of Flight Attendants-CWA and others.

Additionally, the U.S. House of Representatives on July 31 passed H.R. 7617, a package of appropriations bills for fiscal year 2021 that includes a provision requiring face masks for planes, trains and buses. But the White House Office of Management and Budget has opposed the face mask mandate, saying it's "overly restrictive" and that "such decisions should be left to states, local governments, transportation systems and public health leaders."

Instead of concrete rules, the U.S. departments of Homeland Security, Transportation, and Health and Human Services issued joint guidance on July 2 laying out broad health safeguards for airline passengers, crews and other airport workers to minimize the spread of COVID-19, largely leaving it up to the airlines themselves to implement and enforce their own face mask requirements for their customers.

Airlines for America, the industry trade organization representing the leading U.S. airlines, announced in late June that member carriers including Alaska Airlines, American Airlines, Delta Air Lines, Hawaiian Airlines, JetBlue Airways, Southwest Airlines and United Airlines would voluntarily require passengers to complete a simple health acknowledgement during the check-in process and wear face coverings at the airport, on the jet bridge and onboard the aircraft.

What the industry needs is federal regulation with some teeth, experts say, but it remains to be seen if that will materialize.

"The airline industry is working extremely hard to ensure that airline travel is both safe and perceived as safe, and the universal wearing of masks on flights and at airports is an important part of that endeavor, along with a litany of other steps undertaken by airlines and airports to protect passengers and crew members," Stinson LLP aviation partner Roy Goldberg said. "It is like the wearing of a seat belt on an airplane during certain portions of the flight. It protects both the passenger and those around the passenger, and is a matter of federal law rather than state or local requirements."

The Healthy Flights Act would at least strengthen the legal basis that airlines have to enforce mask requirements, allowing them to do so by denying boarding, removing passengers or reporting passengers to the FAA, according to Freshfields' Arshad. But the measure would also require that before removing any passenger or denying them boarding for failure to wear a mask, airlines conduct a reasonable individualized assessment to determine whether the passenger poses a direct threat to the health and safety of others, Arshad explained.

"This provision would be important to ensure that decisions to deny boarding or remove passengers are not arbitrary or made lightly, and that there is an objective standard by which to determine whether a passenger poses a true risk," she said.

Stinson's Goldberg said it makes sense for the DOT to step in where appropriate to shield airlines from having to comply with extensive and sometimes conflicting administrative demands and pandemic-related information requests from various states, U.S. territories and local governments.

"One uniform and reasonable regulator is preferable to 50-plus regulators," he said.

Bart Banino, an aviation partner with Condon & Forsyth LLP, said any eventual DOT regulation would ideally be supportive of the rules that airlines have already established themselves.

"One of the challenges has been and will be enforcement of the regulations," he said. "Wearing masks has become a divisive issue in many communities and has led to conflicts between customers and businesses that require the wearing of masks. The DOT should be cognizant of putting airlines and their employees in the difficult position of enforcing such regulations during flights."

It's also important that any potential enforcement or penalties pursued by the DOT be focused on passengers who refuse to wear face masks, and not the airlines or flight crews that try to enforce regulations, Banino said.

--Editing by Alanna Weissman and Aaron Pelc.

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