21.01.21

NEW REQUIREMENT FOR TRAVEL TO THE UNITED STATES OF AMERICA: PROOF OF NEGATIVE PRE-DEPARTURE COVID-19 TEST OR DOCUMENTATION OF RECOVERY FROM COVID-19*

Effective at 12:01 am on January 26, 2021, the US will require a pre-departure COVID-19 Test or documentation of recovery from COVID-19 be done by all airline or other aircraft passengers two years of age or older, and therefore includes US citizens and permanent residents, arriving into the United States from any place that is not a state, territory or possession of the United States. The requirements are not limited to travel by commercial or private aircraft.

The CDC Order (“the CDC Order”),
https://www.cdc.gov/quarantine/pdf/global-airline-testing-order_2021-01-2_R3-signed-encrypted-p.pdf, indicates that entry into the United States requires either:

  1. A negative pre-departure test which is defined as documentation of a negative COVID-19 test taken within the 3 calendar days preceding a flight’s departure. Such documentation may be in paper or electronic format as required by the CDC Order. Testing must be performed using a viral test. The documentation must also include sufficient verification information such as the name and contact information for the laboratory or health care personnel who performed the test.
  2. A written or electronic document of recovery from COVID-19 after previous SARS – CoV-2 infection in the form of a positive viral test result and a letter from a licensed health care provider or public health official stating that the passenger has been cleared for travel.

A Viral test must be done 3 calendar days preceding entry into the US. So, where a flight from a foreign country to the US is delayed to the extent that it has the effect of causing the Viral Test to fall outside of the 3-day pre-departure testing requirement, a new test must be done.

A Viral test is a viral detection test for current infection (i..e. nucleic acid amplification test or a viral antigen test) approved or authorized by the relevant national authority for detection of SARS-CoV-2.

Where the passenger has tested negative for COVID-19, the airline must confirm that:

  1. The personal identifiers (e.g., Name and date of birth) on the negative qualifying test result matched the personal identifiers on the passengers’ travel documents;
  2. If the passenger is arriving on a direct flight to the US, the specimen was collected within 3 calendar days preceding the flight’s departure;
  3. If the passenger is arriving via one or more connecting flights, the specimen was collected within 3 calendar days preceding the departure of the initial flight but only if:
    a. The connecting flights were booked as a single passenger record with a destination in the US;
    b. The connection is no longer than 24 hours; and
    c. The airline or aircraft operator has instructed the passenger to comply – and uses reasonable efforts to facilitate compliance – with the safety protocols set forth in Runway to Recovery 1.1., December 21, 2020, available at
    https://www.transportation.gov/briefing-room/runway-recovery-11, during such connections; 
  4. The test performed was a Viral test (as defined); and 
  5. The test result states ‘NEGATIVE”, “SARS-Cov-2 RNA NOT DETECTED” “SARS-CoV-2 ANTIGEN NOT DETECTED” or “COVID-19 NOT DETECTED”. A test marked “invalid” is not acceptable.

Where a passenger had previously tested positive for COVID-19 and has recovered the airline must confirm that:

  1. The passenger has presented a documentation of recovery which refers to written or electronic documentation of recovery from COVID-19 after previous SARS-CoV-2 infection in the form of a positive viral test result and a signed letter on official letterhead that contains the name, address and phone number of a licensed health care providers or public health official stating that the passenger has been cleared for travel. Health care providers and public health officials should follow the CDC Guidelines in clearing patients for travel to the US;
  2. The positive test result occurred within the last three months (90 days) preceding the passenger’s flight to the US, or at other intervals as specified in CDC guidance;
  3. The person identifiers (e.g., Name and date of birth) on the positive test result and signed letter match the personal identifiers on the passenger’s passport or other travel documents;
  4. The test performed was a Viral test (as defined); and
  5. The test results states “POSITIVE” “SARS CoV-2 RNA DETECTED” “SARS-CoV-2 ANTIGEN DETECTED” OR “COVID-19 DETECTED”. A test marked “invalid” is not acceptable.


Airlines or other aircraft operators must be able to verify that every passenger – 2 years of age or older – onboard the aircraft is in possession of documentation attesting to receiving a negative Qualifying Test result or to having recovered from COVID-19 after previous SARS-CoV-2 infections and being cleared to travel by licensed health care provider or public health official.

A passenger must retain the documentation in proof of his status and be able to produce the same to any US government official or a cooperating state or local public health authority.

The CDC Order does not speak to the vaccine however on the CDC’s website under Frequently Asked Questions in relation to this new requirement, the CDC indicates that all air passengers will be required to present a negative test result or the documentation of recovery regardless of vaccination status (https://www.cdc.gov/coronavirus/2019-ncov/travelers/testing-international-air-travelers.html).

Contacts: Joanna Marzouca (Associate) joanna.marzouca@mfg.com.jm
Gina Phillipps Black (Partner) gina.black@mfg.com.jm

Date: January 21, 2021

 

* On his first full day in office US President Biden has signed an executive order requiring anyone flying to the US to quarantine on arrival. This is in addition to the proof of being negative or recovery from COVID 19. This note will be updated when we have sight of that order.