Emotional Support Animals Lose Status on U.S. Flights

by Michelle C. Pardo

As Americans begin to ramp up air travel, they may notice less four-legged passengers on their flights.  On January 11, 2020, the Department of Transportation’s (DOT) new rules regarding service animals on flights went into effect and may have a material effect on the type and volume of animals that travel on domestic flights.

The Air Carrier Access Act (ACAA), 49 U.S.C. § 41705, prohibits discrimination in airline service based on disability.  The statute requires airlines to provide accommodations to individual passengers given the realities and limitations of commercial air travel.  The ACAA’s prior regulations recognized two types of service animals: (1) any animal that is individually trained or able to provide assistance to a qualified person with a disability; and (2) emotional support animals, defined as “any animal shown by documentation to be necessary for the emotional well-being of a passenger.”  Unlike a service animal, an emotional support animal (ESA) is intended to mitigate a passenger’s disability by their presence, but are not individually trained to work or perform tasks for the benefit of the person with a disability.

Significantly, airline carriers previously were required to recognize both categories of animals and could not impose the same rules (for example, that the animal be confined to a travel carrier during the flight)  or charge fees that is typically required of pets flying in passenger cabins.  While the large majority of service and ESAs flying on domestic flights were dogs, airlines also saw cats, pigs, turkeys, sugar gliders, birds, rabbits, guinea pigs – even a peacock – serving in the emotional support role.

Emotional support animals, however, typically do not undergo the rigorous training that is typical of service animals that assist individuals with physical disabilities.  As a result, many passenger and crew complaints about animal incidents or disruptions on flights (involving biting, excessive barking, urinating or defecating, or an inability to remain in the owner’s lap or foot space) were about ESAs, and not traditionally-trained service animals.  There also were concerns that fraudulent ESA credentials and paraphernalia (vests), available on the internet, were enabling people not truly in need of animal assistance to abuse the airline policies and avoid paying pet travel fees.

The DOT received approximately 15,000 comments on its notice of proposed rulemaking – many from disability rights organizations – and endeavored to accommodate persons with disabilities while reducing the likelihood of safety or health issues at the airport and onboard aircraft.

The most significant updates are as follows:

Definition of Service Animal and Airline’s Requirement to AccommodateA service animal is now defined as:

“a dog, regardless of breed or type, that is individually trained to do work or perform a task for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability.”

Carriers are not required to recognize emotional support (or comfort or companion) animals as service animals that are non-task trained animals and may treat them as pets.  The DOT noted that under the Americans with Disabilities Act (ADA), emotional support animals are not required to be accommodated in public spaces such as restaurants, theaters or hotels.  The DOT found that this “mismatch” between the DOT’s ACAA regulation and the Department of Justice’s ADA regulation was “particularly striking” given that air travel requires passengers and animals to share narrow, limited spaces in aircrafts for the duration of the flight.  Airlines may choose, however, to transport ESAs, free of charge, at their discretion.

Species Limited to Dogs.  Despite the fact that traditional service animals also have included species other than dogs, such as miniature horses (which may be a reasonable accommodation under the ADA, the DOT decided to limit the definition of service animals to dogs.  There is no limitation on the breed or type of dog.  Comments from several of the airlines noted that miniature horses are not as flexible as dogs (and therefore cannot necessarily position their bodies into the passenger’s foot space), are unable to manage their “elimination functions” as a trained service dog can, and horse hooves run the risk of puncturing an evacuation slide in the event of an emergency.

Number of Service Animals Permitted on Flight.  A passenger is limited to two service animals per flight.  Some individuals with disabilities require animals that perform different tasks and/or require round-the-clock assistance, requiring animals to work in shifts.  Airlines are allowed to require that service animals fit within the passenger’s foot space or on the passenger’s lap; passengers are not entitled to more space than they purchased (although airlines are free to offer additional accommodations, such as offering the passenger an adjacent seat at no cost, if they so choose).

Restraint Devices.  The final rule allows airlines to require service animals to be harnessed, leased, or tethered at all times.  While some service animals are controlled via voice commands only (without any type of restraint), the DOT recognized that the unique characteristics of air travel make this requirement prudent.

Required Documentation in Advance of Travel.  A passenger traveling with a service dog must provide documentation prior to air travel.  The airline may require: (1) A DOT Service Animal Air Transportation Form (which addresses behavior, training and health information) and (2) for flights of 8 hours or more, a Relief Attestation Form (which requires the passenger to confirm that the animal will not need to relieve itself on the flight or it can relieve itself in a way that does not create a health or sanitation issue (e.g. doggie diapers)).  Airlines may not require additional documentation from passengers beyond the DOT forms.  Passengers must have the option of submitting the forms electronically or by hard copy.  The DOT rejected a requirement that the forms be submitted more than 48 hours in advance of flight, as this would impede a passenger’s ability to complete last-minute travel.  In such cases, passengers purchasing tickets less than 48 hours in advance of travel may submit the forms at the gate on the date of travel.

Verification by Airlines.  Airlines may only make two inquiries to determine whether an animal qualifies as a service animal: (1) is the animal required to accompany the passenger because of a disability; and (2) what work or task is the animal trained to perform.  The airlines may not ask the nature or extent of a person’s disability or ask that the service animal demonstrate the task.

Check-In Requirements.  Airlines are not permitted to require a person with disabilities to physically check-in at the airport (rather than utilize online check-in).  Passengers may submit the required forms at the departure gate on the date of travel.

Denial of Service Animal.  The final rule allows airlines to deny transport to a service animal that: (1) poses a direct threat to the health or safety of others; (2) causes a significant disruption in the aircraft or at the airport; (3) the animals’ transport would violate applicable safety or health requirements of a particular U.S. federal agency, U.S. territory or foreign government;  or (4) the required forms are not completed.  The final rule recognizes that some service animals may face additional restrictions on flights to foreign countries.  Denial of transport under (1) and (2) must be based on an individualized assessment of the animal, independent of the dog’s breed or type.  Refusal to provide transportation to any service animal must be accompanied by a written statement of the reason for refusal.

Charges for Damage Caused by Service Animal.  Airlines are permitted to charge passengers for damage caused by a passenger’s service animal so long as the airline normally would charge individuals without disabilities for similar damage.

Of note, the final rule recognizes service animals that assist individuals with psychiatric disabilities.  The DOT’s rule was based on the fact that there is no valid basis for allowing airlines to treat task-trained animals that assist individuals with physical disabilities from those with psychiatric or mental disabilities.  Airlines are not permitted to require psychiatric service animal users to provide a letter from a licensed mental health provider justifying the passenger’s need for the animal.

Airlines, of course, are free to allow passengers to travel with a wider variety of animals with less restrictions.  Media reports indicate that airlines are, by and large, choosing to follow the DOT’s more restrictive rules and treating emotional support animals as pets.