Bill Requiring COVID-19 Testing Prior to Air Travel Faces Uphill Battle

PC: Hawaiian Airlines

A Hawai‘i legislator is attempting to answer perhaps the single most important question that would allow the state to return to some sense of pre-pandemic normalcy: How can Hawai‘i reintroduce mass tourism without significantly heightening the risk of COVID-19 to its residential population?

Congressman Ed Case on Monday introduced the “Air Travel Public Health Emergency Act” in the US House of Representatives. The bill proposes affording states regulatory powers to implement guidelines and restrictions on those engaging in air travel during a public health emergency. Namely, Case hopes to find a legal pathway for Hawai‘i to require pre-board COVID-19 testing for all those who wish to visit the state.

“Air passengers who have been infected by a communicable disease, especially during a declared public health emergency, present a serious public health risk not just to their fellow passengers but to all who come into contact with them at their destinations and upon their return to their home(s),” Case wrote in a statement Monday.

“Further, such passengers present a serious negative economic consequence to the airlines on which they fly and to the destinations at which they arrive, especially destinations reliant on the travel and tourism industry, as they destroy public confidence in the health and safety of air travel and of such destinations,” the Congressman continued.

The legal struggle begins with the Federal Aviation Administration, which has made it clear that it has no authority to authorize or prohibit such regulatory actions on the part of individual states. However, federal law guarantees American citizens the right to interstate travel, which means Case’s legislation faces the obstacle of directly contradicting a protection explicitly named in the US Constitution.

“The Federal Aviation Administration (FAA) is unaware of an authority that would allow individual states to effectively institute the type of pre-boarding screening … described within the jurisdiction of another state,” the agency wrote in a response letter to Case.

The FAA goes on to suggest Case take up the measure with the US Department of Health and Human Services, as it possesses powers under the Public Service Health Act to curb the spread of communicable diseases. A press release from the Congressman’s Office indicated he’s reached out to DHHS but didn’t elaborate on what, if anything, the agency can or will do to help his bill become law.

Case’s struggles to pass the legislation likely won’t end at fighting to circumstantially upend a constitutional right and finding a US government agency to partner with him in the endeavor.

US Representative Ed Case

The Representative’s bill also includes a stipulation that would require airlines to pay for any pre-board testing. Hawaiian Airlines — a major carrier to, from and within the state — reported a more than $144 million loss in the first quarter of 2020, and the company’s financial conditions only worsened in April and May as air travel of all types nearly flatlined.

The legislation would also dictate terms of how airlines operate in other states, where Hawai‘i has no jurisdiction.

On a more encouraging note, Case’s uphill battle has support within the state of Hawai‘i. Lieutenant Governor Josh Green, who formerly represented West Hawai‘i Island as a member of the State Senate, tentatively introduced his “Travel With Aloha” initiative in May. Under the program, those who get tested for COVID-19 reasonably close to arriving in Hawai‘i and prove to be negative for the virus would be allowed to forego the state’s mandatory, 14-day travel quarantine.

“My hope is the quarantine can be minimized with this travel with aloha concept, and that’s the purpose … to be able to bring tourists here safely without extra risk to our people,” Green told Big Island Now in May. “And we won’t have to worry about people breaking quarantine.”

While the quarantine on inter-island travel will be lifted June 16, Gov. David Ige has already expressed his intention to extend the out-of-state travel quarantine beyond its current end date of June 30. He has not committed to any timeline on when that quarantine might be lifted.

How long the state can continue to police quarantine violators effectively remains a major question, however, as some Hawai‘i residents are already complaining that enough isn’t being done to keep visitors in check. Violation of the quarantine can be accompanied by up to a $5,000 fine and a prison sentence as long as one year.

As Case grapples with federal legislation to address the issue of travel during a public health emergency, and officials continue to discuss it at the highest levels of state government, air arrivals to the Hawaiian Islands continue slowly creeping upwards.

On Sunday, June 7, the Hawai‘i Tourism Authority (HTA) reported nearly 1,900 individuals who arrived in the state by plane. Of those, 667 were declared visitors. While those numbers pale in comparison to the nearly 30,000 daily air arrivals on the same date last year, they represent a nearly four-fold increase in passenger arrivals since the state’s travel quarantine took effect in late March.

Graphic courtesy of HTA.

“I believe that as the country reopens, the question of the health and safety of commercial aviation will play a major role in whether we can fully return to pre-COVID-19 rates of travel globally,” Case said Monday. “Our government at all levels must take active steps to ensure the health and safety of communities, passengers and crew arising from (the) proposed resumption of any major airline travel. If we do not do so, with maximum public health safety measures in effect, people just won’t travel on airlines at anywhere near prior levels.”