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Sunday, August 11, 2019

Feds Announce New Guidelines for Service and Emotional Support Animals on Planes

With increasing numbers of service or emotional-support animals on flights — dogs, cats and even ducks — have come increasing numbers of problems and complaints.  The rise in emotional support animals has coincided with growing publicity on the mental health benefit of pets.

In one of our most popular posts, LTD discussed well-trained service animal meets a need for those individuals with a disability.

On Thursday afternoon, the Department of Transportation (DOT) issued a final policy statement for service animals, emotional support animals (ESA) and psychiatric service animals (PSA). In this set of guidelines, the DOT is describing what types of policies it will and will not permit:

  • Species Limitations:  The Department’s disability regulation has a broad definition of service animals. Priority will be placed on ensuring that the most commonly recognized service animals (dogs, cats and miniature horses) are accepted for transport.  Nevertheless, airlines are still subject to enforcement action if they categorically refuse to transport other species that they are required to transport under the current rule.
  • Breed/Species Restrictions:  The Department’s Enforcement Office views a limitation based exclusively on breed of the service animal to not be allowed under its service animal regulation.  The Enforcement Office intends to use available resources to ensure that dogs as a species are accepted for transport.  Airlines are permitted to find that any specific animal, regardless of breed, poses a direct threat. 
This guideline as caused quite a bit of press because Delta Airlines, for example, has a current service animal policy that bans “pit bull type” dogs.  This policy will need to be modified. Delta told The Associated Press that it was reviewing the DOT’s guidance.
  • Documentation Requirements:  The Department’s disability regulation permits airlines to determine, in advance of flight, whether any service animal poses a direct threat, but the rule does not clearly indicate how airlines must make that assessment.  The Department’s Enforcement Office does not intend to take action against an airline for asking users of any type of service animal to present documentation related to the service animal’s vaccination, training or behavior so long as it is reasonable to believe that the documentation would assist the airline in making a determination as to whether an animal poses a direct threat to the health or safety of others. The Enforcement Office will monitor the airlines’ animal documentation requirements to ensure that they are not being used to unduly restrict passengers with disabilities from traveling with their service animals.  
  • Containment:  The Department’s disability regulation contains no explicit requirements or prohibitions with respect to containment of service animals in the cabin.  The Department’s Enforcement Office will consider containment issues for all service animals on a case-by-case basis, with a focus on reasonableness.  In general, tethering and similar means of controlling an animal that are permitted in the Americans with Disabilities Act context would be reasonable in the context of controlling service animals in the aircraft cabin.
  • Advance Notice:  The Department’s disability regulation prohibits airlines from requiring advance notice for passengers traveling with service animals, other than emotional support animals (ESAs) and psychiatric support animals (PSAs). Enforcement resources will be focused on ensuring that airlines do not require advance notice for passengers with traditional service animals as advance notice may significantly harm passengers with disabilities as it prevents them from making last minute travel plans that may be necessary for work or family emergencies. 
Many airlines require passengers traveling with ESAs or PSAs to file paperwork 48 hours or more before departure.  Check with your airline and make sure you have theses guidelines ready when  checking in. 
  • Check-In Requirements:  The Department’s Enforcement Office does not view it to be violation of the Department’s disability regulation if airlines require lobby check-in for ESAs and PSAs because the regulation permits airlines to require ESA and PSA users to check in one hour before the check-in time for the general public.
  • Proof that an Animal is a Service Animal:  The Department’s Enforcement Office has long interpreted existing law as permitting airlines to seek credible verbal assurance that a passenger is an individual with a disability and the animal is a service animal.  If a passenger’s disability is not clear, airlines may ask questions to determine the passenger’s need for the animal even if the animal has other indicia of a service animal such as a harness, vest or tag. 
  • Number of Service Animals Per Passenger:  The Department’s disability regulation is not clear as to how many service animals may travel with a passenger with a disability. Enforcement efforts will generally focus on ensuring that airlines are not restricting passengers from traveling with one ESA and a total of three service animals if needed.  Generally, one ESA should be sufficient for emotional support, but a passenger may reasonably need more than one task-trained service animal.
Most airlines currently limit passengers to one ESA, except Spirit that limits the number of trained service animals to three per person.
  • Number of Service Animals per Aircraft:  The Department’s disability regulation does not allow airlines to deny transport to a service animal accompanying a passenger with a disability because of a limit on the total number of service animals that can be on any flight.  The Department’s Enforcement Office would thus view denial of transport to an ESA because of other ESAs in the cabin of aircraft to violate its regulation as ESAs are considered service animals under the existing rule. 
  • Weight Restrictions: Under the Department’s disability regulation, airlines may deny transport to a service animal that is too large or too heavy to be accommodated in the cabin.  The Department’s Enforcement Office views a categorical ban on animals over a certain weight limit, regardless of the type of aircraft for the flight, to be inconsistent with the regulation.
United will need to amend their current ban on ESAs that weigh more than 65 pounds.
  • Age Restrictions:  The Department’s disability regulation does not address the minimum age of a service animal.  However, all service animals (including ESAs) are expected to be trained to behave in public.  As a general matter, the Department’s Enforcement Office would not view it to be a violation for an airline to prohibit the transport of service animals younger than four months as some airlines have done.
  • Flight-Length Restrictions:  The Department’s disability regulation provides that airlines may require passengers using a service animal on flights scheduled to take eight hours or more to provide documentation that the animal will not need to relieve itself on the flight or that it can do so in a way that does not create a health or sanitation issue on the flight.  The Department’s Enforcement Office intends to use its available resources to ensure that airlines comply with the existing regulations with respect to this issue and do not automatically prohibit service animals (including ESAs) on flights lasting eight or more hours.
Some airlines, such as Delta and United, forbid ESAs on flights over eight hours.
  • Mental Health Professional Form:  Under the Department’s disability regulation, airlines are not required to transport ESAs or PSAs unless the passenger provides medical documentation of their need for the animal as specified in the rule.  The Department’s Enforcement Office would view it to be a violation for an airline to reject a medical form or letter that meets the criteria found in the rule because of an airline’s preference that the passenger use the airline’s form. 
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Remember, if you have questions related to your health, always consult your doctor or medical professional. The information presented here is informative only and is not medical advice.

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