In the latest Airlines Confidential podcast former Spirit Airlines CEO Ben Baldanza questions whether the CDC mask order actually applies to the time passengers spend on aircraft. That’s an odd take.
On the issue of an Executive Order, clearly I think what President Biden wanted to do was mandate mask wearing in lots of places but recognized that his authority was limited and could do it on federal grounds and in some other areas.
…I don’t know if that mandate is law on board an airplane. I know individual airlines have said you have to wear a mask or we’re not going to allow you to fly… I’m not sure that the mandate that came from President Biden extends to inside the airplane.
…But I also think that it gets to an airline’s requirement to really be clear about how to deal with these kind of conflicts. No one likes conflict especially on board an airplane… but use of the word law if it’s not law as opposed to it’s our policy or we require masks to be worn on the plane that’s better language than it’s the law I think. But it may be the law.
Now, let’s be clear. President Biden’s Executive Order didn’t mandate mask wearing. It instructed his administration to tackle the issue. The CDC then issued a regulation requiring masks on ‘conveyances’.
- Conveyance includes an aircraft under 42 CFR 70.1
- A ‘conveyance operator’ (airline) must require mask wearing “on board..for the duration of travel”
- The airline must use “best efforts to ensure that any person…wears a mask when boarding, disembarking, and for the duration of travel.”
- These best efforts include “instructing persons that Federal law requires wearing a mask on the conveyance and failure to comply constitutes a violation of Federal law”
The FAA and TSA probably lacked the authority to mandate masks so the Biden administration turned to the CDC.
Courts have ruled that the CDC’s power under 42 USC 264(a) is limited to actions similar to those laid out in the statute (in cases involving its eviction moratorium, but the same would apply to the transportation mask mandate). Lindsay Wiley, director of the Health Law and Policy program at American University’s law school in D.C., thinks this also invalidates the federal mask mandate.
So if Baldanza is actually arguing that the CDC’s mask order is not legal, there’s an argument in support of his position. But if he’s suggesting that the order doesn’t cover time spent on the aircraft itself (versus in the airport), or that flight attendants are incorrect to announce that wearing masks is federal law, that’s incorrect as well – both are clearly spelled out in the CDC order.