Last week, both EEOC and the Department of Transportation came out with guidances related to people with disabilities. The EEOC added to their running guidance on Covid-19, while the DOT came out with a bill of rights for airline passengers with disabilities. The blog entry is divided into two categories: latest amendment to the long-running EEOC document on Covid-19; and the DOT Bill of Rights for airline passengers with disabilities. With respect to the DOT Bill of Rights, what I did for that is cut and paste the entire Bill of Rights and then add my thoughts where appropriate, which is a tactic I have done before in this blog with other guidances.
Latest Amendment to the Long-Running EEOC Document on Covid-19
With respect to the EEOC guidance, Robin Shea in her blog, here, does a fabulous job of breaking down the new additions to the EEOC document. I am just going to add a few of my own thoughts. Otherwise, you can’t go wrong by looking at Robin’s discussion of the latest additions to the EEOC document. The EEOC document can be found here. My thoughts are immediately below:
- CDC guidance has changed radically over time and so has American behavior. The CDC guidance combined with American behavior means that direct threat is really more of a macro issue in a way that it wasn’t before. Direct threat is still going to be an issue with respect to a particular individual that is at increased risk of consequences should they get Covid-19. Otherwise, the CDC guidance, which really can only focus on hospitalization because so few people are reporting Covid-19 due to utilizing home tests, becomes very difficult to apply as a matter of practice.
- The CDC guidance can all change in a matter of moments. The BA5 omicron variant is becoming quite prevalent, and so everyone has to be prepared for changes at any moment in time.
- The interactive process is more critical than ever. The do’s and don’ts of the interactive process we discussed here.
- While the EEOC talks about how accommodation process might be delayed because of the pandemic, you do need to remember, as we discussed here, that an unreasonable delay in granting an accommodation is actionable.
- I recently read that 60% of legal professionals no longer want to work in the office full-time. I also recently read that for all kinds of employees the number is close to 50% for those not wanting to work in the office full-time. So, expect a lot of telecommuting reasonable accommodation requests.
- Direct threat to others in light of American behavior and the latest CDC guidance is almost impossible now to divine. The current CDC guidance and the direct threat analysis get a bit easier with respect to direct threat to self.
- The EEOC document talks about fully vaccinated. What does that even mean? Two shots? Two shots and a booster? Two shots and two boosters? I recently read an Israeli study that found a second booster was very helpful for individuals over 50. It wouldn’t surprise me at some point if the CDC says everybody should get a second booster. Even so, “fully vaccinated,” is a really uncertain term, especially if it is meant to convey a certain level of Covid-19 protection.
DOT Bill of Rights (Here)
Airline Passengers with Disabilities Bill of Rights
This Bill of Rights describes the fundamental rights of air travelers with disabilities under the Air Carrier Access Act and its implementing regulation, 14 Code of Federal Regulations (CFR) Part 382.
The Bill of Rights consists of:
- The Right to Be Treated with Dignity and Respect.
- The Right to Receive Information About Services and Aircraft Capabilities and Limitations.
- The Right to Receive Information in an Accessible Format.
- The Right to Accessible Airport Facilities.
- The Right to Assistance at Airports.
- The Right to Assistance on the Aircraft.
- The Right to Travel with an Assistive Device or Service Animal.
- The Right to Receive Seating Accommodations.
- The Right to Accessible Aircraft Features.
- The Right to Resolution of a Disability-Related Issue.
Click on any of the rights above to be linked to an explanation of that right in this document. The Bill of Rights does not expand or restrict the rights of air travelers with disabilities. Rather, it provides a convenient summary of existing law. Because the explanations in this document may not be as precise as the regulations themselves, the explanations link to the actual regulatory text for your reference.
Important Information About the Bill of Rights
Does the Bill of Rights reflect current information?
- The Bill of Rights is a living document. DOT will update the Bill of Rights as regulations change.
- DOT published this Bill of Rights in July 2022.
My thoughts: interesting question as to whether the Bill of Rights, which interprets DOT Air Carrier Access Act’s regulations, will be given deference per Kisor v. Wilkie, here.
Does the Bill of Rights apply to me?
- The Bill of Rights applies to individuals with a disability which is defined in Part 382 as persons with a physical or mental impairment that permanently or temporarily impacts a major life activity such as walking, hearing, or breathing.
My thoughts: the Air Carrier Access Act doesn’t always work the same way as the ADA. For example, it is possible that a temporary disability under the ADA may not be protected. We have talked about temporary disabilities and the ADA numerous times before, such as here. It also makes sense that temporary disabilities would be protected under the Air Carrier Access Act because it is quite foreseeable that a person with a temporary disability could be flying and need assistance.
Does the Bill of Rights apply to my trip?
- The Bill of Rights applies to all flights of U.S. airlines, and to flights to or from the United States by foreign airlines.
My thoughts: what is a U.S. airline? The Air Carrier Access Act actually applies to all carriers, see here, which is a far broader term than what we think of as U.S. airlines.
- The obligation to comply with government safety and security laws is a general exception to airlines’ obligations described in this Bill of Rights.
- Also, some airlines are approved by DOT to use an alternative method to comply with a regulation when it provides an equivalent level of accessibility or it meets the objective of Part 382. Visit the docket for the Equivalent Alternative Determinations and Conflict of Law Waivers for more information.
Are airline contractors subject to the same obligations as airlines?
- Airlines must make sure their contractors that provide services to the public meet regulatory obligations. Airlines are legally responsible for the action or inaction of their contractors.
My thoughts: there are several Different Air Carrier Access Act regulatory provisions, such as here, that make it crystal clear that airline responsibility to persons with disabilities is a nondelegable duty.
1. The Right to Be Treated with Dignity and Respect.
An airline, including its employees and contractors, may not discriminate against an individual with a disability because of his or her disability.
My thoughts: what does “because of,” mean? The answer is no longer simple after Bostock, as we discussed here.
- For example, an airline may not refuse transportation or other services because of one’s disability or resulting appearance or involuntary behavior.
- An airline cannot require air travelers with disabilities to accept special services or subject them to restrictions that do not apply to other passengers, except passengers with disabilities may need to check-in early, provide advanced notice or documentation, or pre-board to receive certain disability-related services.
- Airline personnel who deal with the traveling public must be trained to be aware of passengers with disabilities’ needs and how they can be accommodated safely and with dignity.
- Airline employees and contractors must receive refresher training at least once every three years. Complaint Resolution Officials (the airlines’ experts in resolving disability-related issues) must receive refresher training annually.
My thoughts: get someone knowledgeable to do the training (providing training on ADA and on ADA related laws is a big part of my practice). Keep in mind, that there are several intersecting laws when it come to airlines dealing with people with disabilities and they are: Airline Deregulation Act, Air Carrier Access Act, Americans with Disabilities Act, and state negligence laws. It may be worthwhile for a trainer to have a background in each of these laws because the obligations vary depending upon the law involved. Making it even more complicated is that issues of preemption are also involved as a result of the Airline Deregulation Act.
Reference links (14 CFR): Section 382.11 (General Discrimination Prohibitions); Section 382.19 (Prohibition on Refusal to Transport); Section 382.23 (Medical Certificates); Section 382.27 (Advance Notice to Obtain Certain Services); Section 382.33 (Discriminatory Restrictions); Section 382.141 (Training of Airline Personnel and Contractors); Section 382.143 (Recurrent Training of CRO).
2. The Right to Receive Information About Services and Aircraft Capabilities and Limitations.
Airlines must provide air travelers with disabilities information upon request about the facilities and services available to them. The information must be
specific to the aircraft scheduled for the flight, unless unfeasible (for example, an unpredictable aircraft substitution occurs).
The information airlines must provide includes:
- any aircraft-related, service-related, or other limitations on the ability to accommodate passengers with a disability, such as limitations on level-entry boarding (Airlines must provide this information to any passenger who states that he or she uses a wheelchair for boarding, even if he or she did not request the information.).
- any limitations on the availability of storage on the aircraft
- for assistive devices.
- the specific location of seats with movable aisle armrests.
- whether the aircraft has an accessible lavatory.
- the types of services that are not available on the flight.
Reference link (14 CFR): Section 382.41 (Advance Information).
3. The Right to Receive Information in an Accessible Format.
An airline’s primary website must be accessible if the airline uses an aircraft with more than 60 seats. In addition, airlines must ensure that automated kiosks they install after December 2016 at U.S. airports with 10,000 or more enplanements per year are an accessible model, until 25% of kiosks at each airport location are the accessible model.
My thoughts: we discussed this issue in this blog entry, here.
Passengers who identify as needing visual or hearing assistance must receive prompt access to the same trip information as other passengers at the gate, ticket area, customer service desk, and on the aircraft (so long as it does not interfere with airline employees’ safety duties).
My thoughts: with respect to the Deaf, deaf, and hard of hearing communities, I can assure you that this is simply not happening, especially with respect to the aircraft (don’t even get me started on the lack of captioning with respect to the behind the seat viewing options), if my experience flying recently is any indication.
Airlines must train personnel to recognize requests for communication accommodation. The personnel must be trained to use the most common methods for communicating with individuals who are blind, deaf, or hard of hearing that are readily available, such as writing notes, for example. Personnel must also be trained to use established means for communicating with deaf-blind passengers when they are available, such as passing out Braille cards if available, reading an information sheet that a passenger provides, or communicating through an interpreter, for example.
My thoughts: I simply do not understand the focus on deaf-blind in this regulation apart from other disabilities that have communication challenges. Perhaps, DOT was rather inartfully trying to say that airlines must also be aware of deaf-blind passengers and their needs, which is absolutely true. It could have been phrased a lot better.
Reference links (14 CFR): Section 382.43 (Website Accessibility); Section 382.53 (Information for Blind, Deaf, or Hard of Hearing at Airports); Section 382.57 (Kiosk Accessibility); Section 382.119 (Information for Blind, Deaf, or Hard of Hearing on Aircraft); Section 382.141 (Training of Airline Personnel and Contractors).
4. The Right to Accessible Airport Facilities.
Airlines and U.S. airport operators are both responsible for the accessibility of airport facilities. The Air Carrier Access (ACAA) and Department’s implementing regulation in 14 CFR Part 382 cover airlines’ obligations. Various other federal statutes and regulations apply to U.S. airport operators, for example, the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and their implementing regulations. Airlines and airport operators have concurrent obligations to ensure accessibility of airport facilities.
My thoughts: airports are invariably but not always owned and operated by nonfederal governmental entities. As such, most airports, which are owned by nonfederal governmental entities, are subject to title II of the ADA and to §504 of the Rehabilitation Act because they take federal funds. If it is a private airport, the airport would be subject to title III of the ADA and to §504 of the Rehabilitation Act as you have to assume a private airport would take federal funds. The obligations of the title II or title III entity are nondelegable, as we discussed in this blog entry and in this blog entry.
This Bill of Rights describes the obligations of airlines under the ACAA. In general, airlines must ensure that terminal facilities that they own, lease, or control are readily accessible and usable by passengers with disabilities at U.S. airports, and readily usable at foreign airports. Airports are responsible for ensuring compliance of facilities that they own, operate, or lease to other parties, including airlines.
Airlines must ensure an accessible route between the gate and the aircraft boarding location. When level-entry boarding is not available, such as boarding via a jet bridge, airlines and U.S. airports must ensure ramps or mechanical lifts are available to service most flights. Airlines, in cooperation with airport operators, must also provide service animal relief areas at the airport.
My thoughts: I am consulting on several cases where a person with a disability under the care of an airline suffers a personal injury. When that happens, you have to deal with the intersection of the Airline Deregulation Act, the ADA, the Air Carrier Access Act, and state negligence laws. There are also issues of preemption, so it can all get pretty complicated.
Reference links (14 CFR, unless otherwise noted): Section 382.51 (Accessibility of Airport Facilities); Section 382.95 (Assistance With Respect to Boarding and Deplaning); Section 382.99 (Agreements Between Airlines and Airports); Section 382.101 (Other Boarding and Deplaning Assistance); 28 CFR 35 (Nondiscrimination on the Basis of Disability in State and Local Government Services); 49 CFR 27 (Nondiscrimination on the Basis of Disability-Receipt of Federal Financial Assistance); 49 CFR 37 (Transportation Services for Individuals with Disabilities).
5. The Right to Assistance at Airports.
Passengers with disabilities must be provided prompt and timely enplaning and deplaning assistance, upon request, from properly trained airline personnel.
My thoughts: the Air Carrier Access Act regulations, such as here for example, make it quite clear that “upon request,” is not parenthetical. Also, the phrasing is confusing because it is upon request of the person with a disability and not the airline or its subcontractor’s personnel that is the critical question.
This must include:
- the services of personnel and the use of ground wheelchairs, accessible motorized carts, boarding wheelchairs, on-board wheelchairs, and ramps or mechanical lifts, as needed.
- assistance with moving from the curb to the departing flight, assistance with transportation between gates to make connections, and assistance with moving from the arriving flight to the curb for pick-up.
- assistance with accessing key functional areas of the terminal such as the ticket counter or baggage claim, or to a restroom entrance (if time allows).
- escorting a passenger with a service animal to an animal relief area at a U.S. airport.
Passengers who request assistance in advance of arriving at the airport need to identify to airline personnel once they arrive at the airport or the gate to receive the assistance.
Airlines cannot require the passenger to accept a specific form of assistance that he or she does not request (ex: requiring a wheelchair when a sight guide was requested).
In addition, the airline cannot leave a passenger unattended for more than 30 minutes in a wheelchair or other device, in which the passenger is not independently mobile.
Reference links (14 CFR): Section 382.11 (General Discrimination Prohibitions); Section 382.91 (Assistance in Moving Within Terminal); Section 382.95 (Assistance With Respect to Boarding and Deplaning); Section 382.103 (Prohibition on Unattended Immobile Wheelchair Passenger).
6. The Right to Assistance on the Aircraft.
Airlines must allow a passenger with a disability who self-identifies at the gate as needing additional time or assistance to board, stow accessibility equipment, or be seated, the opportunity to board before all other passengers.
- Except, an airline with an open seating policy has been approved by DOT to accommodate extra-time passengers after an initial group of passengers have boarded, but early in the boarding process.
Passengers with disabilities must be provided prompt and timely boarding and deplaning assistance, upon request, from properly trained airline personnel.
- This includes assistance with moving to and from seats.
- If level loading bridges are not available, a lifting device must be provided to assist persons with limited mobility safely on and off the aircraft at most U.S. airports, except when boarding smaller aircraft (less than 19 seats).
- For smaller aircraft and non-primary U.S. airports or foreign airports, airlines must ensure boarding and deplaning assistance by any available means acceptable to the passenger.
- However, airlines must never hand-carry a passenger (directly pick up a passenger’s body in the arms of airline personnel) on or off an aircraft, except in an emergency.
Once a passenger with a disability has boarded, airlines must provide assistance, if requested, such as:
- moving to or from the lavatory, including using an on-board chair to assist, if requested.
- stowing and retrieving carry-on items, including assistive devices.
Reference links (14 CFR): Section 382.93 (Preboarding); Section 382.95 (Assistance With Respect to Boarding and Deplaning); Section 382.101 (Other Boarding and Deplaning Assistance); Section 382.111 (Services Required On the Aircraft); Section 382.113 (Services Airlines are Not Required to Provide On the Aircraft).
7. The Right to Travel with an Assistive Device or Service Animal.
Traveling with Assistive Devices on Aircraft
Airlines must allow assistive devices as carry-ons in the cabin free of charge consistent with safety rules.
- This includes medical devices and/or a personal amount of medication that assist the passenger with his or her disability.
- Assistive devices must not count against the passenger’s carry-on limit.
- Priority in-cabin stowage (either a closet or a row of seats designated for seat strapping) must be available for at least one normal-sized collapsible manual wheelchair in any aircraft with 100 or more passenger seats.
- Airlines that use seat strapping should provide space for at least two of these wheelchairs if stowing the second wheelchair would not displace passengers.
- The priority stowage requirements do not apply to older aircraft.
Manual wheelchairs that cannot be transported in the cabin must be transported in the cargo compartment consistent with safety and security requirements. Airlines must accept a battery powered wheelchair, if it fits in the cargo compartment and can be transported consistent with safety and security requirements. Airlines must also provide for the checking and timely return of assistive devices at the gate for use in the terminal. Should an airline lose, damage, or destroy the wheelchair or other assistive device, the airline must provide compensation in an amount up to the original purchase price of the wheelchair or device.
Reference links (14 CFR): Section 382.67 (Priority Stowage of Wheelchairs In-Cabin); 382.121 (Assistive Devices In-Cabin); Section 382.125 (Stowage of Assistive Devices In Cargo); Section 382.131 (Liability for Loss, Damage, or Delay of Assistive Devices).
Traveling with Service Animals
Airlines must permit a service dog to accompany a passenger with a disability in the aircraft cabin unless:
- the dog poses a direct threat to the health or safety of others;
- the dog causes a significant disruption or misbehaves in the cabin or at an airport gate area;
- the dog’s carriage would violate a U.S. or foreign law;
- current DOT forms weren’t provided as required by the airline for the trip.
A decision by airline personnel to refuse transportation of a service dog with the passenger must be based on an individualized and objective assessment of the dog that considers the nature of the risk and the likelihood that harm will actually, or continue to, occur. The assessment should also consider whether mitigations are available.
Airlines cannot deny transportation of the service dog if there are means that would mitigate the problem.
Reference link (14 CFR): Sections 382.72 -382.80 (Service Animals).
My thoughts: we discussed the DOT final rule when it comes to animals on airplanes here.
8. The Right to Receive Seating Accommodations.
Airlines must provide specific seats to the following passengers who identify to airline personnel as needing the seat, if the seat exists on the same class of service on the aircraft:
- Movable Aisle Armrest–When the passenger uses an aisle chair to board and cannot transfer readily over a fixed aisle armrest.
- Bulkhead Seat or Other Seat–When the passenger travels with a service animal that is best accommodated at a particular seat.
- Greater Leg Room–When the passenger has a fused or immobilized leg.
- Adjoining Seat–For a companion providing a certain type of assistance, such as:
- A personal care attendant who performs a function that is not required to be performed by airline personnel, for example assisting a passenger with a disability with eating;
- A reader for a passenger who is blind or low vision;
- An interpreter for a passenger who is deaf or hard of hearing; or
- A safety assistant if a passenger with a disability cannot assist with their own evacuation.
For passengers not specified above, airlines must provide a seat assignment that best accommodates his or her disability if the passenger meets the airline’s procedures.
Airlines must provide seating accommodations using one of three methods: the block method, the priority method, or preboarding (if the airline does not provide advance seat assignments). Visit our Seating Accommodation Methods page to learn more about these seating methods and for the seating methods of the largest U.S. airlines and their operating partners, which account for approximately 95 percent of domestic passenger air traffic. Information regarding seating methods of certain foreign air carriers is also provided.
Reference link (14 CFR): Sections 382.81-382.87 (Seating Accommodations).
9. The Right to Accessible Aircraft Features.
New aircraft delivered to U.S. airlines after April 1992 and to foreign airlines after May 2010 must have accessible features that include:
- Movable aisle armrests on half of the aisle seats, if the aircraft has 30 or more seats.
- DOT has approved some airlines to meet the purpose of this requirement by alternative means that provide substantially the same or greater accessibility to passengers with disabilities.
- Priority stowage space for wheelchairs in the cabin for aircraft with 100 or more seats.
- At least one accessible lavatory, if the aircraft has more than one aisle.
- An on-board wheelchair, if the aircraft has an accessible lavatory, or the passenger gives the airline advance notice that he or she can use an inaccessible lavatory and needs an on-board chair to reach it.
Airlines with older aircraft with 30 or more seats that replace the aisle seats, must ensure half of these seats have movable aisle armrests. Also, if an airline replaces a lavatory on a twin-aisle aircraft, there must be an accessible lavatory.
10. The Right to Resolution of a Disability-Related Issue.
Airlines must make available a Complaint Resolution Official (CRO) in a timely manner, this may be by phone.
- The CRO should be trained as an expert in resolving disability-related issues and be able to resolve disability-related issues on the spot.
- Airlines must respond and directly address the disability related issues in your complaint in writing within 30 days, but airlines are not required to address complaints sent more than 45 days after the incident unless the complaint is referred to the airline by DOT.
- DOT will refer all disability-related complaints it receives within 6 months of the incident for response by the appropriate carrier.
- DOT investigates all disability-related complaints it receives to determine whether a violation of the Air Carrier Access Act occurred.
- Passengers with disabilities who have pressing questions about their rights should ask to speak with the airline’s CRO. Airlines must have a CRO available at each airport they serve during all times the airline is operating at that airport. Passengers may also contact the DOT Disability Hotline at 1-800-778-4838. The hours for the hotline are 8:30am to 5:00pm Monday-Friday.
My thoughts: as we have discussed previously in the blog, here for example, no private cause of action exists for violations of the Air Carrier Access Act regulations.