EASA's COVID-19 Aviation Health Safety Protocol and potential liability exposure for the aviation industry
Amidst the larger turmoil of the aviation industry suffering due to the COVID-19 pandemic, stakeholders are planning to resume operations in the near future and will be confronted with a series of measures in order to prevent the further spread or revival of the COVID-19 virus.
In addition to the large number of international and national regulations and measures issued to battle this pandemic, on 20 May 2020, EASA published its COVID-19 Aviation Health Safety Protocol. These guidelines were issued with the purpose of welcoming passengers back on board, while protecting the health of the passengers and airline and airport staff.
Whilst these steps will undoubtedly help mitigate the spread of the virus, being confronted with a large number of sometimes confusing health and safety measures might expose stakeholders, and especially airlines, to unwelcome liability issues.
Passenger and crew management
In line with the protocol, prior to boarding, airlines should provide all passengers with health promotional materials, including information on COVID-19 symptoms, hygiene measures, the obligation to wear face masks and air filtration and ventilation. Throughout passenger management, airlines should also regularly use video and audio messages to instruct passengers in relation to the preventative measures, as well as the consequences of not adhering to such measures.
Airlines should obtain a signed declaration from the passengers confirming that they are not displaying symptoms of COVID-19 and that they are fit to fly. Additionally, public authorities may request airlines to provide a so-called 'Passenger Locator Card' for contact tracing purposes. This card will likely include the name, seat, phone number and email address of the passenger.
Where possible, airlines will need to ensure that physical distancing of 1.5 metres is adhered to. Quite evidently, this will be nearly impossible on board the aircraft. Airlines should therefore attempt to physically distance among passengers, with families sitting together, whilst also encouraging passengers to replace their facemask after every four hours, disposing of the mask in single-use waste bags.
For crew members, as well as airport service suppliers staff, airlines are advised to enable separate flows for crews at the airport, ensuring physical distance from the passengers at all times. Once on board, crew members will have reduced interaction with the passengers, for example, no duty free offered on board and limited food and drink services.
In the event that a passenger starts to display COVID-19 symptoms on board the aircraft, airlines should ensure that the passenger is wearing a face mask and that the passenger (and family) are isolated on board (preferably leaving two rows of seats cleared in each direction surrounding the passenger, with the passenger sat in the last row window seat). In addition, symptomatic passengers should be assigned a lavatory, only for their use, where possible, and should have a crew member assigned to them only. In cases where a passenger is struggling to breathe, medical advice should be sought and oxygen supplementation provided.
Passengers who fail to adhere to the preventative measures prior to boarding should be refused access to the aircraft. Not complying with the applicable measures and crew instructions on board the aircraft should lead to the application of the so-called 'unruly passenger' procedure and could lead to the passenger being disembarked from the aircraft. Further action may be taken by the local authorities at the destination for endangering the flight safety and the health of other passengers and crew members.
With more and more flights being scheduled to take-off again in the month of June, the entire flight experience will inevitably change drastically for both passengers and crew. This change of procedures and habits might give rise to some undesirable behaviour.
From the outset, it must be noted that this protocol is intended to give guidance to stakeholders in the air transport industry, providing a helpful tool in order to prepare for the restart of passenger air transportation.
However, it cannot be excluded that passengers might react adversely to the measures in place and the unforeseen reaction to having one or more symptomatic passengers on board.
In terms of international travel, any passenger seeking to make a claim that they contracted COVOD-19 during a flight would still need to overcome the hurdle of establishing that contracting the disease amounts to an ‘accident’ for the purposes of the Montreal Convention.
The protocol, in that sense, is not the last stop. Passengers will go through a set of procedures and measures, clearly informing them of a shared burden and responsibility to prevent the further spread of COVID-19, reminding them to truthfully fill in the COVID-19 statement, follow crew instructions and wear a mask at all times.
Traveling by air will change, or at least look differently, for the near future. We expect that this protocol will be updated in line with the evolution of the pandemic, knowledge of the risk of transmission and potential preventive measures, as well as changing regulation.
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