The US Centers for Disease Control and Prevention issued an order on January 12 stating that all air travel passengers over the age of 2 (including US citizens and green card holders) are required to obtain a negative COVID-19 test prior to departing any foreign country or to produce evidence of their recovery from COVID-19.
The order applies to all commercial airlines, as well as passengers traveling via private flights and charter flights. The new requirements will take effect on January 26, 2021, and remain in effect until either (1) the secretary of the US Department of Health and Human Services declares that COVID-19 is no longer a public health emergency or (2) the director of the Centers for Disease Control and Prevention (CDC) rescinds the order, or if neither of those scenarios takes place, through December 31, 2021. The order applies regardless of citizenship and US citizens and permanent resident returning to the United States are subject to it if they arrive on or after January 26.
The order specifically mandates that all air travelers must do one of the following.
All incoming air passengers (over the age of 2) from any country are required to provide written documentation of their negative laboratory test result an attestation (on paper or in an electronic version), as well as a written attestation, to their airline upon check-in (for transmission to the CDC). Parents and authorized individuals are permitted to attest on behalf of passengers between the ages of 2 and 17. There is no provision in the CDC order mandating submission of a negative test result or an attestation to the US Customs and Border Protection (USCBP), although travelers from the United Kingdom are required to retain a copy of the negative test result for submission to USCBP if requested.
For individuals arriving to the United States via a direct flight, the test must have been conducted pursuant to a specimen collected within three calendar days of departure. Please note that this means that the test must have been taken and the result produced within the 72-hour time frame before boarding the flight. Many testing agencies take longer than 72 hours to produce a test result, so this should be borne in mind.
If the passenger will be arriving to the United States through connecting flights, the test must have been conducted within three calendar days before departure of the initial flight if
If the connecting flight to the United States was booked separately or any flight in the itinerary lasts longer than 24 hours, a new test must be obtained within three days before arriving in the United States.
If the three-day limit is surpassed due to a delay in flight departure, the passenger will need to be retested.
The COVID-19 test must be a viral test to determine current infection status, which means a viral antigen test or a nucleic acid amplification test (NAAT). The test result must indicate “Negative,” “SARS-CoV-2 RNA Not Detected,” “SARS-CoV-2 Antigen Not Detected,” or “COVID-19 Not Detected.” Tests marked as “Invalid” are not acceptable for this purpose.
In the absence of providing attestation of a negative COVID-19 test, all passengers over the age of 2 arriving in the United States via air transportation from any country who have previously been infected with COVID-19 must produce all of the following to evidence recovery from COVID-19:
The positive test result must have occurred within the last three months (90 days) preceding the inbound flight to the United States, and must have been a viral test (i.e., viral antigen test or nucleic acid amplification test) with the result of “Positive,” “SARS-CoV-2 RNA Detected,” “SARS-CoV-2 Antigen Detected,” or “COVID-19 Detected.” Tests marked as “Invalid” are not acceptable for this purpose.
With respect to both the current negative test result and former positive test result with current clearance to travel, all passengers must retain written or electronic evidence for presentation to the airline. Airlines are required to deny boarding to individuals who do not produce the requisite evidence. In addition, the documentation must also be made available to any US government, state, or local public health official(s) requesting evidence of a negative test result or recovery from COVID-19.
Individuals who have received a COVID-19 vaccine are not exempt from the testing requirement and are still required to produce the above-noted evidence.
At this time, the country-specific COVID-19-related travel bans put in place earlier this year (Presidential Proclamations 9984, 9992, 9993, 9996, and 10041) remain in place, and the testing/documentary requirements noted above do not exempt foreign nationals who are subject to those restrictions.
Such individuals will still be required to obtain preauthorization to enter the United States in addition to providing evidence of a negative COVID-19 test or recovery from past COVID-19 infection. It is possible that in the coming weeks the country-specific bans may be lifted, after the testing rules are put into place.
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If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:
Washington, DC
Shannon A. Donnelly
Eleanor Pelta
Eric S. Bord
Miami
Laura C. Garvin
For additional government-related guidance, learn more about our Washington strategic government relations and counseling practice.