Authored by Summer Associate Mackenzie Wieburg

On January 12, 2021, the U.S. Centers for Disease Control and Prevention (CDC) issued an order requiring that air passengers aged two years or older, regardless of nationality, flying to the United States and/or U.S. territories from a foreign country must either:

1. get tested for COVID-19 no more than 3 days before their initial flight departs and present a negative COVID-19 test result; or
2. present documentation by a licensed health care provider or public health official of having recovered from COVID-19 to the airline before boarding the flight.

The order will go into effect at 12:01 a.m. EST (5:01 a.m. GMT) on January 26, 2021. After going into effect, this order replaces a previous order currently in effect and expands UK pre-departure COVID-19 testing requirements to all U.S.-bound passengers flying in from foreign countries.

With few exceptions that include certain airline crew members and federal law enforcement personnel, this order applies to all air passengers aged two years or older, including U.S. citizens and legal permanent residents, traveling into the United States from a foreign country. This order also applies to air passengers who have received a COVID-19 vaccine. If an air passenger chooses not to provide documentation to satisfy one of the two options below, the airline must deny boarding to the passenger.

OPTION ONE: PRESENTING A NEGATIVE PRE-DEPARTURE COVID-19 TEST RESULT

One option for air passengers to comply with the order is to present a negative pre-departure COVID-19 viral test (nucleic acid amplification test or a viral antigen test) no more than 3 days before the departure of their initial flight to the United States. Under this option, air passengers are required to have written documentation (paper or electronic copy) of their negative laboratory test results to show the airline. The test result documentation must include personal identifiers (such as name and date of birth which must match the identifiers listed on the passenger’s passport), specimen collection data, and the type of test performed. The results must definitively show that the result was negative or that the virus was not detected. A test marked “invalid” is not acceptable.

If an air passenger is arriving to the United States on a direct flight, the specimen must be collected within 3 days before the flight departs. If an air passenger is arriving to the United States via one or more connecting flights, the specimen must have been collected within the 3 days preceding the departure of the initial flight in their itinerary but only if (1) each connection (i.e. layover) is no longer than 24 hours and (2) the connecting flights were booked as a single passenger record with a destination in the United States.

OPTION TWO: PRESENTING DOCUMENTATION BY A LICENSED HEALTHCARE PROVIDER OR PUBLIC HEALTH OFFICIAL OF HAVING RECOVERED FROM COVID-19

Air passengers who have had a positive viral test result for COVID-19 within the last three  months prior to their flight’s departure to the United States must provide:

1. documentation of a viral test result received within the last three months preceding the flight to the United States that indicates the result was positive for COVID-19, or that RNA, antigens, or COVID-19 was detected; and
2. a signed letter on official letterhead from their healthcare provider or a public health official that states the air passenger have been cleared for travel.

The personal identifiers (name and date of birth) on the positive test result and signed letter must match the personal identifiers on the passenger’s passport.

PRESIDENTIAL PROCLAMATIONS

The CDC order does not replace the Presidential proclamations establishing restrictions on the entry of certain travelers into the United States. Therefore, a negative COVID-19 test result or documentation of recovery prior to boarding the flight does not exempt, with specific exceptions, foreign nationals who were physically present within specific countries during the 14-day period preceding their entry or attempted entry into the United States

The Trump Administration recently announced that it plans to suspend these proclamations, with the exception of those traveling from Iran and China, on January 26, 2021 – the same day the CDC order will go into effect. However, the Biden Administration has stated that it will immediately reinstate these proclamations as the pandemic worsens and more contagious variants emerge around the world.

U.S. citizens are not subject to the above Presidential proclamations and all proclamations provide exceptions to the restrictions for lawful permanent residents of the United States.