The CSH Law Aviation Practice Group serves a variety of companies and individuals in the Aviation industry, all of whom have been significantly impacted by the current COVID-19 crisis. These are unprecedented times that require creative strategies, especially as the situation and the regulatory environment continues to rapidly change. We have been listening to the challenges our clients are facing and providing consultation on best practice strategies for coping with and handling the issues raised by the novel coronavirus. We wanted to provide a central location of resource information for our Aviation industry clients to help through these uncertain times. Our firm is open, working remotely, here to serve our Aviation clients’ needs.
Note: This article is current as of April 2, 2020 and consists of highlights from various resources, but does not include all information available on each topic. We recommend our readers check current FAA policies and regulations online as well as industry associations.
FAA and FARs:
Has the FAA issued any rulings or orders regarding COVID-19 with which we need to comply in the aviation industry?
The FAA has issued a Safety Alert for Operators (SAFO), but no other directive or order on handling COVID-19 issues yet. The March 12, 2020 SAFO is directed at Air Carriers and Crews specifically, as opposed to General Aviation. The guidance identifies protocols for crews who still have travel or have layovers internationally and recommend heightened monitoring of the health of crews. There are also aircraft disinfection and cleaning procedures offered by the CDC and OEMs, which can be found here: NBAA-Aircraft Disinfection Procedures
Flight Review and Check-Rides:
What if I cannot complete a timely flight review, renew my medical certificate, or take a check-ride due to COVID-19?
AOPA has urged the FAA to exert a “maximum amount of flexibility” during the crisis. It appears the FAA’s primary concern has been managing the air traffic control system for safety, as well as providing guidance on emergency evacuation flights for American citizens returning home from abroad. The FAA has also now developed a Flight Delay ATC command center resource, which can be found here: https://www.fly.faa.gov/flyfaa/usmap.jsp.
The FAA noted that it is also “exploring contingency options” for AMEs regarding medical certificates, but still encouraged AMEs to follow CDC and local public health official guidance and to continue their normal examinations in the meantime. Then, on March 26, 2020, the FAA issued an order suspending enforcement of airman medical certificate expirations. AOPA reported on the key information from the Notice that “from March 31, 2020 to June 30, 2020, the FAA will not take legal enforcement action against any person serving as a required pilot flight crewmember or flight engineer who holds a medical certificate that expires within this time period.” For Part 135 operations specifically, the FAA has also noted that employers who are unable to administer random drug and alcohol tests during the pandemic will be allowed to increase testing at the end of the year to meet these testing requirements. Note, however, operators must submit a letter of intent to the FAA before the agency will grant the exemption.
On March 31, 2020, the FAA announced it will award $10 Billion in funds to commercial and general aviation airports under the CARES Airport Program. All COVID-19 related FAA news can be found here: https://www.faa.gov/news/updates/?newsId=94991
Flight schools and airports:
Does my flight school need to shut-down and/or implement additional protocols due to COVID-19?
It is highly recommended that flight schools and everyone in the aviation industry update their “Preflight” checklists to include sanitation/disinfection of the cockpit and, most importantly, the flight controls. Reports have now shown that the virus can live and remain infectious sometimes for hours and up to 3 days on various surfaces. Thus, some flight schools now require that each student pilot wipe down and sanitize the flight controls and surfaces at the end of each flight as part of the check-out process, and each student pilot must sanitize the flight controls and surfaces as part of the pre-flight process. These procedures are particularly useful for aircraft that are flown in quick succession like trainer-aircraft. Some companies are also requiring cleaning and disinfecting of the supplies maintained at the dispatch desks and disallowing use of shared headsets.
While no order specifically has shut-down flight schools, some flights schools have voluntarily shut down operations due to COVID-19 exposure potential and in an effort to comply with social distancing requirements. Practically speaking, some FBOs at airports have suspended operations which makes it impossible for some flight schools to continue flights. However, at this time, there is no law or directive from the FAA that requires flight schools to cease operations, and each company needs to take into consideration the risks their employees/staff and customers might face in continuing operations, and if they continue to operate, should take precautions and provide protection to its flight crew, instructors, and student pilot customers.
What can we do if our flying lessons are grounded due to COVID-19?
Generally, flight schools reserve the right to limit or cancel any flights at their discretion—if a flight school grounds all aircraft and/or crew due to COVID-19 concerns, it will be within their legal right to do so. However, depending on the type of program and/or contractual obligations, the student pilots might have certain legal remedies to consider, and which would need to be assessed on a case-by-case basis. In the meantime, student pilots can take free online ground courses during the pandemic with institutions such as Embry-Riddle Aeronautical University and www.Fly8MA.com for example. King Schools and Sporty’s Pilot Training remain open for online learning as well. Aviation Supplies and Academics (ASA) has also reduced and waived fees for study materials.
Also, don’t forget about “chair flying” and flight simulators, both of which can help keep your aviation procedures and radio skills sharp in the meantime. Some of our flight school clients have also recommended the following ideas, just to name of few:
- Registering for a free account with www.faasafety.gov, which has free courses that will improve your safety posture. You can always review the FREE handbooks on the FAA’s website as well.
- Joining aviation associations like AOPA, that have videos and courses for members on flight safety and procedures.
- Contacting your CFI about remotely helping with ground school.
- Reading the POH for your aircraft cover-to-cover, not just Limitations or Performance.
Can my airport be shut down in light of the COVID-19 concerns?
Potentially, with FAA approval. The FAA provided guidance to Airport Sponsors Considering COVID-19 restrictions and noted that all proposed closing of airport access (i.e., passenger and aircraft access) must be approved in advance by the FAA. In general, the FAA does not permit temporary closure or restriction of federally obligated airports for nonaeronautical purposes. Grant Assurance 19 further requires that airport sponsors will not cause or permit any activity or action on the airport that would interfere with its use for airport purposes. Regarding any requirement for flights to land at certain airports for screening, the FAA noted it has discretion to consider such requests and recognized the exceptional situation presented by this public health emergency.
Can I increase my drone operations to respond to COVID-19 issues?
The FAA reported that it has received inquiries about expanded drone operations to respond to COVID-19. Some felt that large retailers and suppliers should be able to deliver critical supplies and even household orders to residential areas or to medical facilities. The FAA responded that it was addressing the inquiries using the current, existing Part 135 on-demand certification process.
Can a business recover for losses for a party’s failure to perform duties caused by COVID-19?
Potentially no. Generally, when a party fails to meet a contractual obligation, it can be held liable for losses under a breach of contract claim. However, if a party can show that it was unable to perform the contractual duties due to COVID-19, it may actually be excused from performance under the doctrine of “impossibility” or “frustration of contract.” An example may be if the State or Federal government prohibits operation of a business through emergency order or directive, such that performance of the contract would violate the law.
Does the Force Majeure provision in my contract excuse my business from performance?
It depends on the language of the clause. Generally, this clause identifies specific circumstances such as labor strikes, hurricanes or other natural disasters, but sometimes does not include the term “epidemic” or “pandemic.” Additionally, the clause sometimes identifies what remedies or concessions are allowable in the event of such extraordinary event (additional time to perform, additional costs to impose, suspension of the contract, etc.) There may or may not be a right to terminate the contract based on this clause alone. Some Force Majeure clauses may also require certain proof of the triggering event. In North Carolina, the courts have not interpreted the clauses in many cases, but generally seek to ascertain whether the event was truly “unforeseeable” at the time of contracting and to what circumstances the parties actually intended the clause apply.
Employment and business law issues:
If we have to move our business to online/remote work schedules, what risks or issues do we face with cyber security?
Businesses in the aviation industry are looking towards online and remote for work-at-home employees and for meetings more now than ever, which puts them at risk for cybersecurity issues. CSH Law has provided insight on these risks with practical tips here:
What are the FMLA and paid sick leave implications of COVID-19?
The Families First Coronavirus Response Act was signed into law on March 18, 2020, which does provide some relief and sets forth expectations for employers during the crisis. For the FAQs on this topic, please see CSH Law’s COVID-19 resource here:
 https://www.aopa.org/news-and-media/all-news/2020/march/27/faa-eases-pilots-worries?utm_source=ebrief&utm_medium=email; https://www.federalregister.gov/documents/2020/04/01/2020-06784/enforcement-policy-for-expired-airman-medical-certificates