At long last, the Department of Transportation (“DOT”) has brought clarity to the use of emotional support and service animals on airplanes. As many of you will remember, the DOT proposed a sweeping set of regulations on this issue back in February. The proposed rule drew thousands of comments, many of them angry and emotional, both pro and con.
The 122-page final rule provides clear guidelines regarding what constitutes a service animal and the steps that must be met before a passenger may take a service animal onboard an aircraft. Under the new regulation, a service animal is defined as:
a dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Animal species other than dogs, emotional support animals, comfort animals, companionship animals, and service animals in training are not service animals for the purposes of this Part.
While 400 commenters recommended keeping “miniature horses” within the existing definition of service animals, the DOT decided to change that policy because the “number of individuals that use trained miniature horses as service animals is quite small.” The DOT indicated that airlines are free to continue to accept miniature horses at their discretion. The DOT also decided to exclude capuchin monkeys from the definition on the grounds that they are not really domesticated animals and that air travel may be too stressful for them.
The regulation also makes clear that the service animal handler bears all responsibility for assuring the behavior of the animal, including “keeping the animal under control at all times, and caring for and supervising the service animal, which includes toileting and feeding.”
The amount of documentation the passenger has to supply is minimal. The passenger must fill out a one-page document entitled “Service Animal Air Transportation Form.” The form requires the animal handler’s name, a description of the animal, an attestation that the dog has had a rabies vaccination, that the animal has been appropriately trained and the name of the trainer, and that the dog has never behaved aggressively or caused injury. The form also requires an acknowledgement that the animal will be leashed at all times, and that the handler will be responsible for any damage that the animal causes. The passenger is not required to submit any documentation or proof of these matters, but the form warns that it is an official DOT form and that any false statements or answers are punishable under federal law. In addition, if the flight is to take more than 8 hours, the passenger can be required to file a second form certifying that the animal will not have to “relieve itself” or can do so in a way that will not cause a health or sanitation issue. This Service Animal Relief Attestation Form carries a similar false statement warning.
If the passenger’s service animal meets these requirements, the regulation makes clear that an air carrier may not refuse transportation unless doing so would pose a direct threat to health or safety.
EMOTIONAL SUPPORT ANIMALS
According to the DOT, two thirds of the comments received related to the question of whether carriers should also be required to transport emotional support animals. Of those, sixty percent supported requiring transportation, and forty percent supported the DOT’s proposal to treat emotional support animals as pets. Despite this relatively even split in the public comments, the DOT’s proposed rule has been made final with few changes.
The regulations make clear that there is no requirement that an airline carry any other type of animal, including emotional support animals. The regulations permit airlines to do so if they wish, and gives them free rein to place restrictions on the carriage and to charge a fee for the service.
There is Still Room for Disputes
While the regulation provides needed clarity, it does not make it easy for the carrier to reach an independent decision on whether, the passenger’s declaration of suitability notwithstanding, an animal should be carried as a “service animal.” The regulation contains the following “guidance” to help air carriers in this regard:
- 382.73 How do carriers determine if an animal is a service animal that must be accepted for transport?
You may rely on one or more of the factors . . . to determine if an animal is a service animal that must be accepted for transport.
(1) You may make two inquiries to determine whether an animal qualifies as a service animal. You may ask if the animal is required to accompany the passenger because of a disability and what work or task the animal has been trained to perform. You must not ask about the nature or extent of a person’s disability or ask that the service animal demonstrate its work or task.
(2) You may observe the behavior of an animal. A trained service animal will remain under the control of its handler. It does not run freely around an aircraft or an airport gate area, bark or growl repeatedly at other persons or other animals on the aircraft or in the airport gate area, bite, jump on, or cause injury to people, or urinate or defecate in the cabin or gate area. An animal that engages in such disruptive behavior demonstrates that it has not been successfully trained to behave properly in a public setting and carriers are not required to treat it as a service animal without a carrier in the cabin, even if the animal performs an assistive function for a passenger with a disability.
(3) You may look for physical indicators, such as a harness or vest on the animal, to determine if the animal is a service animal.
As a result, while the regulation gives the airlines a number of tools to stop what was referred to by many commenters as the “flying zoo” effect, there are still opportunities for mistakes, misunderstandings, complaints, and litigation.
The new rules become final 30 days after they are published in the Federal Register, which should happen any day now.