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United States to impose COVID-19 testing requirements on air travellers from China

By Henry Chang, Jonathan Mor
Dentons
Jan 5, 2023

On January 26, 2021, the United States imposed a pre-departure COVID-19 test requirement (the Prior Pre-Departure COVID-19 Test Requirement) requiring all air passengers travelling to the United States from a foreign country to present either:

  • A negative test result for a qualifying COVID-19 test conducted on a specimen collected within the three calendar days preceding the flight’s departure from a foreign country; or
  • A positive COVID-19 test result within 90 days of the flight’s departure from a foreign country and a letter from a licensed health care provider or public health official stating that the passenger has been cleared for travel. COVID-19 testing requirement.

The Prior Pre-Departure COVID-19 Test Requirement was rescinded on June 10, 2022. However, due to a reported increase in COVID-19 cases in the People’s Republic of China, the Centers for Disease Control and Prevention (CDC) has recently imposed new COVID-19 test requirements on certain travellers.

On December 30, 2022, the CDC issued an Order (the CDC Order), which will prohibit the boarding of certain passengers who have been present in the People’s Republic of China, the Special Administrative Region of Hong Kong, or the Special Administrative Region of Macau (collectively, China) unless they present either: (a) a negative result for a qualifying COVID-19 test, or (b) sufficient documentation of having recovered from COVID-19. Air passengers will also be required to confirm that the information they present is true by means of an attestation. The CDC Order will become effective for flights departing at or after 12:01 a.m. EST on January 5, 2023.

Further details regarding the CDC Order appear below.

Overview

As mentioned above, the CDC Order becomes effective on January 5, 2023. As of that date, the CDC Order will prohibit the boarding of passengers two years of age or older on an itinerary that includes the United States (regardless of whether the U.S. is the final destination or an intermediate stop) on:

  • Any aircraft departing from China; or
  • Any aircraft departing from an airport designated under the CDC Order, if the passenger has been in China within the ten days prior to their departure for the United States, unless they comply with the requirements of the CDC Order.

The CDC Order applies regardless of citizenship or vaccination status. However, please note that, in addition to children under the age of two, the CDC Order excludes:

  • Passengers transiting China (for a period of 24 hours or less) en route to the United States; and
  • Passengers who have been in China for less than 24 hours.

Although the CDC may list additional airports at a later date, at the present time, airports designated under the CDC Order (collectively, the Designated Airports) include: (a) Incheon International Airport (Seoul), (b) Toronto Pearson International Airport, and (c) Vancouver International Airport.

In order to comply with the CDC Order, the above passengers will be required to present paper or digital documentation of one of the following requirements:

  • A negative viral test result for SARS-CoV-2 (the virus that causes COVID-19), conducted on a specimen collected no more than two calendar days before the flight’s departure from China, or two calendar days before the flight’s departure from a Designated Airport, if the passenger has been in China within the ten days prior to their departure for the United States (Qualifying Test); or
  • Documentation of having recovered from COVID-19 in the past 90 days, in the form of one of the following (Documentation of Recovery):
    • A positive Qualifying Test result for SARS-CoV-2 conducted on a specimen collected more than ten calendar days but fewer than 91 calendar days before the flight’s departure, or
    • A positive Qualifying Test result for SARS-CoV-2 conducted on a specimen collected ten or fewer calendar days before the flight’s departure and a signed letter from a licensed healthcare provider or public health official stating that the passenger’s COVID-19 symptoms began more than 10 calendar days before the flight’s departure for the United States.

Passengers must retain paper or digital documentation of the negative Qualifying Test result or Documentation of Recovery presented to the airline or other aircraft operator. They must also produce their Qualifying Test result or Documentation of Recovery upon request by any US government official or cooperating state or local public health authority.

Passengers must also provide an attestation to the airline or other aircraft operator, of having received a negative Qualifying Test result or of having met the requirements for Documentation of Recovery. A parent or other authorized individual may present the required documentation on behalf of a passenger aged two to 17 years. An authorized individual may also act on behalf of any passenger who is unable to act on his or her own behalf (e.g., by reason of age, or physical or mental impairment). Airlines and other aircraft operators must retain a copy of each passenger’s attestation for two years.

Requirements for Qualifying Test Results

According to the CDC Order, a Qualifying Test is defined as a viral detection test for current infection with SARS-CoV-2 (i.e., a nucleic acid amplification test (NAAT) or a viral antigen test). The test must be cleared, approved, or issued an emergency use authorization by the U.S. Food and Drug Administration, or granted marketing authorization by the relevant national authority, for the detection of SARS-CoV-2.

The requirements for a Qualifying Test include:

  • Personal identifiers (e.g., name and date of birth);
  • A specimen collection date indicating that the specimen was collected more than two calendar days before the flight’s departure;
  • The type of viral test indicating that it is a NAAT or antigen test;
  • A test result that states ‘‘NEGATIVE,’’ ‘‘SARS-CoV-2 RNA NOT DETECTED,’’ ‘‘SARS-CoV-2 ANTIGEN NOT DETECTED,’’ ‘‘COVID-19 NOT DETECTED,’’ or other indication that SARS-CoV-2 was not detected in the individual’s specimen (a test marked “invalid” is not acceptable); and
  • Information about the entity issuing the result (e.g., laboratory, healthcare entity, or telehealth service).

Requirements for Documentation of Recovery

As mentioned above, Documentation of Recovery includes either:

  • A positive Qualifying Test result for SARS-CoV-2 conducted on a specimen collected more than ten calendar days but fewer than 91 calendar days before the flight’s departure; or
  • A positive Qualifying Test result for SARS-CoV-2 conducted on a specimen collected ten or fewer calendar days before the flight’s departure and a signed letter from a licensed healthcare provider or public health official stating that the passenger’s COVID-19 symptoms began more than 10 calendar days before the flight’s departure.

If a passenger presents a letter from a licensed healthcare provider or public health official, this letter must:

  • List the date the person’s symptoms started;
  • Have personal identifiers (e.g., name and date of birth) that match the personal identifiers on the passenger’s passport or other travel documents; and
  • Be signed and dated on official letterhead, which contains the name, address, and phone number of the healthcare provider or public health official who signed the letter.

Exceptions

The following categories of individuals and organizations are specifically excepted from the requirements of the CDC Order:

  • Crew members of airlines or other aircraft operators if they are on official duty assigned by the airline or aircraft operator that involves operation of the aircraft or positioning of crew not operating the aircraft, provided their assignment is under an air carrier’s or operator’s occupational health and safety program that follows applicable industry standard protocols for the prevention of COVID-19 consistent with relevant CDC guidance;
  • Airlines or other aircraft operators transporting passengers with COVID-19 (on flights other than scheduled passenger airline flights) pursuant to CDC authorization and in accordance with CDC guidance.
  • US federal law enforcement personnel on official orders who are traveling for the purpose of carrying out a law enforcement function, provided they are covered under an occupational health and safety program that takes measures to ensure personnel are not symptomatic or otherwise at increased risk of spreading COVID-19 during travel.
  • US military personnel, including civilian employees, dependents, contractors, and other US government employees when traveling on US military assets or non-US military flights, if such individuals are under competent military or US government travel orders and observing applicable US Department of Defense force health protection guidance to prevent the transmission of COVID-19.
  • Individuals for whom the issuance of a humanitarian exception is necessary based on both: (1) exigent circumstances where emergency travel is required to preserve health and safety (e.g., emergency medical evacuations); and (2) where pre-departure testing cannot be accessed or completed before travel because of exigent circumstances.

Penalties for non-compliance

The CDC Order sets out specific requirements for both: (a) airlines and other aircraft operators; and (b) aircraft passengers. Failure comply with these requirements may result in criminal penalties.

Requirements for airlines and other aircraft operators

Any airline or other aircraft operator boarding passengers subject to the requirements of the CDC Order is required to do the following:

  • Identify which passengers are subject to the requirements of the CDC Order and confirm that each such passenger, prior to boarding the aircraft, has presented paper or digital documentation reflecting a negative Qualifying Test result or Documentation of Recovery;
  • Verify that each passenger has provided an attestation of having received a negative Qualifying Test result or having met the requirements for Documentation of Recovery, and must retain a copy of each passenger attestation for two years; and
  • Not board any passenger without confirming the documentation described above.

Requirements for aircraft passengers

Any aircraft passenger subject to the requirements of the CDC Order is required to do the following:

  • Present paper or digital documentation reflecting a negative Qualifying Test result or Documentation of Recovery; and
  • Provide an attestation to the airline or other aircraft operator of having received a negative Qualifying Test result or having met the requirements for Documentation of Recovery; and
  • Retain a copy of the above documentation and produce it upon request to any US government official or a cooperating state or local public health authority after arrival into the United States.

Any airline, aircraft operator, or aircraft passenger who fails to comply with the above requirements may be subject to criminal penalties under 42 U.S.C. §271 and 42 C.F.R. §71.2, in conjunction with 18 U.S.C. §3559 and 18 U.S.C. 3571. In the case of an aircraft passenger, willfully giving false or misleading information to the government may also result in criminal penalties under 18 U.S.C. §1001.