Aviation Getting Back to Work: Employee and Customer Considerations

April 2020

As local stay at home orders become lifted or relaxed, more employers will be able to open their doors to their employees and their customers. In the aviation industry, the employees and customers of charter operators, aircraft management companies, and even corporate flight departments will inherently come into close contact with each other, and operators need to have a plan in place to help keep employees and customers healthy and safe and to manage their risks. Below are some basic considerations we have developed with operators, management companies, and their advisors.

Have a Written Back to Work Plan

Many state back to work orders require a preparedness plan prior to opening. Even in states without such a requirement, aviation companies should take the time to define the new normal for opening by creating or revising policies to address a range of critical workplace issues and issues specific to their businesses.

Employers that have furloughed or laid off employees like pilots, mechanics, and safety personnel will need to consider the corollary issues associated with returning them to active duty. As one example, employers should be aware that employees who are recalled from furlough or re-hired may be eligible for the emergency paid sick leave and/or expanded family and medical leave benefits provided by the Families First Coronavirus Response Act (FFCRA). Leave policies may need to be reconciled with the next employment actions. Additionally, recalling or re-hiring employees, or electing not to do so, can also have forgiveness implications for companies that have received Paycheck Protection Program (PPP) loans. FMJ’s attorneys are available to assist if you have questions regarding the FFCRA or PPP loan program, or if you would like help with implementing an FFCRA paid leave policy.

Assuming that you do want to recall or re-hire some or all employees, operators should consider allowing certain employees to continue working remotely where telework remains a practical option, such as dispatch or other “office” responsibilities and tasks. Another option is to consider gradually adding workforce, or flexible or staggered shifts, so that there are as few people in the workplace as possible while remaining fully functional and operational. However you decide to proceed, open lines of communication with employees will also be critical as you balance return to work risks, employee safety, corporate culture and the desire of workers to return under the proposed circumstances.

Employee Return to Work Letters

Employers also need to consider whether medical screening of employees is appropriate, or even required, as part of your preparedness plan. Some businesses have insisted on conducting on-site health checks, although that is a fairly intrusive approach. It also is potentially not as effective as one might think, especially since medical information is suggesting that some people infected with COVID-19 are non-symptomatic.

As an alternative, operators could ask employees to essentially self-report by signing an attestation, whereby an employee acknowledges that said employee is not symptomatic and/or will not report to work if she or he is experiencing symptoms or been exposed to COVID-19. An attestation could also acknowledge that the employees understand and will abide by the company’s back to work plan.

Keep in mind that any screening measures an employer implements will need to comply with applicable laws and regulations, such as those regarding anti-discrimination, privacy, and handling of employee medical information. As such, it is important to plan any screening measures carefully to ensure compliance.

Customer Communications and Expectations?

Customer interactions are going to vary widely, depending on your business. What works for a micro-brewery or an FBO’s restaurant and lounge is going to be very different than what works for a flight services company serving a single aircraft owner or a charter operator flying many customers.

Management of ground facilities might include limiting or monitoring the number of visitors at any given time and implement requirements to wear masks or other personal protective equipment. Public notices on doorways and websites may be prudent to impart rules for behavior and assumption of risk for visitors.

The situation will be very different for passengers flying for hours with your employees as crew. Charter and aircraft management companies may want to take a further step and provide their customers with well-branded PPE kits with a mask, rubber gloves, and disinfectant spray as an extra service. Aviation companies might also want to consider attestations similar to employee acknowledgments, attesting that they have no symptoms and no contact with known COVID-19 cases.

Could customers be asked to waive rights to claims about COVID-19 transmission? Potentially, yes. While most states will enforce waivers that meet appropriate conditions, the requirements do vary from state to state, and the form of the waivers should be tailored appropriately. It also depends on your business model as to whether it will seem appropriate. With aircraft management companies, for instance, it is common to have the company and flight personnel covered on the owner’s insurance and for the owner to take some responsibility related to the operation of the aircraft. Charter companies, however, maintain full operational control over the aircraft they fly and are expected to be responsible for most events in-flight. Could both ask for waivers specifically as to COVID-19? Yes, in theory, but it needs to be legal and the question of whether to request it may vary widely based on the company’s customer base and activities.

Other Plan Considerations

After establishing a preparedness plan for the employees and customers entering the workspace, employers will want to consider what the day-to-day operations will look like when they open for operation. For example, operators will need to consider the level of protective equipment that must be worn by employees, and also the protective equipment that may become part of employee workstations. Operators should also consider the increase in sanitation procedures and resources for employees to take time to clean the workplace, including the aircraft in which they will be flying.

Employers should also ask the hard question of whether they are ready to reopen, notwithstanding state authorization to do so. Do they have the supplies they need? Do the employees buy into the plan? Is there a customer demand? You may find that you are moving too quickly under the circumstances or being rushed by external pressures.

Finally, aviation companies also need to bear in mind that they will be flying state to state and also country to country. They may want to consider requirements for multiple jurisdictions and how their policies may vary from depending on their destinations. There have already been reports of aircraft being turned away from destinations due to flight bans and new local entry requirements. The COVID-19 situation continues to evolve and operators should anticipate and investigate local issues in any jurisdictions where they do not fly frequently.

If you have questions about back to work plans or employee and customer attestations or waivers or releases, FMJ can help answer your questions and assist in managing risks for employee and passenger claims in this new normal of the aviation world.

If you’re interested in learning more, please contact Jordanne Kissner (Transportation & Logistics attorney) at jordanne.kissner@fmjlaw.com,  Natolie Hochhausen (HR & Employment advising attorney) at natolie.hocchausen@fmjlaw.com Kevin Johnson (Head of Transportation & Logistics practice) at kevin.johnson@fmjlaw.com, or Shannon McDonough (Head of HR & Employment practice).