Civil aviation flight crew (essentially pilots and cabin crew) must meet certain technical requirements in order to be able to perform their duties, in accordance with European legislation governing this sector (inter alia, Commission Regulation (EU) N. 1178/2011 of 3 November 2011 laying down the technical requirements and ad administrative procedures related to mobile staff in civil aviation pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council and subsequent amendments).
One of the technical requirements that cabin crew members must fulfil is to hold an aeromedical certificate (“AME certificate“). Without a valid AME certificate, a cabin crew member can’t operate any flight.
With these assumptions in place, we look at how an airline should act in the event that a cabin crew member is refused an AME certificate.
Given the importance of this requirement, companies in the sector usually monitor AME certificate renewals, precisely in order to avoid complex management situations, both with the crew member affected by the non-renewal of the AME certificate and in terms of work organization (the crew member without the AME certificate must be replaced at the operational level).
Monitoring the renewal of AME certificates is a necessary “preventive measure”, but may not be sufficient, especially in cases where there is disharmony between the INSS and the Spanish Aviation Safety Agency (“AESA”).
Indeed, the failure to renew an AME certificate usually coincides with a situation of temporary incapacity for work (“TIW“). In such cases, therefore, no complex situation arises for the company: the crew member’s employment contract is suspended during the TIW, with the legal consequences that follow.
A different situation arises when the crew member is not recognised as having a TIW (or an existing one is not confirmed) and, at the same time, the aeronautical medical centres or the aero-medical examiners authorised by AESA refuse to renew the AME certificate.
In these cases, according to the above, the crew member can’t operate any flights, but, according to the INSS criteria, he/she is fit to work, with the consequence that the company must resolve a conflict that it has not generated and that, basically, is the consequence of a regulatory and administrative mismatch.
What solutions can the company adopt in such cases?
The first, and simplest, would consist of agreeing with the crew member the suspension of his or her employment contract until the renewal of the corresponding AME certificate, and monitoring his or her progress.
This would be the most peaceful and realistic solution, since, as we will explain below, the suspension of the contract could be the automatic consequence of the non-renewal of the AME certificate.
The second solution could consist of assigning tasks totally different from those of the cabin crew member, which are compatible with his or her state of health, whenever possible. This solution, again, aims to avoid any kind of conflict, but, in the opinion of this writer, it can be considered that in the cases analysed there is no obligation to assign duties other than those of cabin crew, since the worker was hired specifically to perform such duties.
The last solution would be to communicate the suspension of the contract, due to temporary unsuitability, until the AME certificate is renewed, with a follow-up of the cabin crew member’s achievement of the AME certificate.
Indeed, the failure to renew the AME certificate can be considered as a “temporary situation of inability“, a “temporary ineptitude“, a situation of “technical impossibility to fly“, which justifies the suspension of the contract, in compliance with civil aviation regulations, as recently indicated by the High Court of Justice of Andalusia.
In short, the situation analysed is particularly complex and the ideal solution would be to formalise, in a peaceful manner, the suspension of the employment contract with the cabin crew member.