Regular fliers have all experienced the anger and frustration of being stuck on the tarmac. With people once again taking to the “friendly” skies in greater numbers, far more delays than usual are expected. The flight you expected to be 45 minutes turns into a fist-shaking multi-hour ordeal. As the mood on the plane goes from bad to worse, people often wonder: “Is this actually legal?”
The answer you don’t want to hear is that your tarmac hold probably is legal and, for the foreseeable future, courts may be inclined to give more leeway to the airlines than they generally would under the law.
The U.S. Department of Transportation (DOT) has new rules about how long a plane is allowed to stay on the tarmac and under what conditions. The modification of these tarmac rules began back in 2016 and went into effect only this year. So, none of the rule changes were motivated by the pandemic.
No matter what airline it is, whether it’s a U.S.- or foreign-owned carrier, a domestic flight can sit on the tarmac for no more than three hours. For international flights, the limit is four hours.
There needs to be one announcement of the tarmac hold at the 30-minute mark. Then, at two hours, the rules state passengers must be provided with water, food, and medical care on the plane if it is needed. There is also a requirement that the bathrooms on the plane are fully functional.
Finally, once the three/four-hour mark hits, passengers have the legal right to leave the plane. Often, when this happens, the flight is simply canceled because of added delays (such as the need to remove checked bags and also whatever crew work hour complications could arise).
Given that this is air travel, of course there are exceptions. The most common is where a pilot decides that the plane needs to remain on the tarmac for safety reasons. It’s also important for passengers to understand that the tarmac delay clock only starts when you are unable to leave the plane. If you’re sitting at the gate, the door is open and passengers could get off the flight, the clock has yet to start.
Adriana Gonzalez, a Florida lawyer, said that even where the airlines may feel they have valid reasons to extend tarmac delays, we should never lose sight of the most important issue.
“The airlines may claim that meeting all of the legal requirements for a tarmac hold is going to become, in a practical sense, very complicated, as they are cutting back on in-flight service during the pandemic. Airlines are going to need to be more flexible in responding to passengers who are in distress and need to leave the plane before the time the normal tarmac rules would apply. The health and safety of passengers has to always come first,” Gonzalez said.
From the perspective of the airlines, it has become more complicated to run each flight. There are increased risks to in-flight personnel as they circulate the cabin for regular service, and there are also ongoing disruptions in the supply chain. Not everything that is served on flights in the quantities needed is as readily available today as it was in early 2020. While air travelers will need to be flexible where these supply issues impact only things that are nice to have (such as the usual selection of snacks or in-flight alcohol), the one thing that can never be sacrificed is safety.
Every tarmac delay in the best of times sees the onboard environment become more emotionally charged every hour the plane is on the ground. To go from passengers shaking with frustration to acting out and having a volatile situation onboard is something the airlines need to be very aware of and sensitive to over the next few months. As we all try to get used to air travel again, airlines should not only follow all rules designed for passenger safety but err on the side of exceeding them.
Aron Solomon, JD, is the head of strategy and chief legal analyst for Esquire Digital. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in CBS News, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Yahoo!, ABA Journal, Law.com, The Boston Globe, and many other publications.