As Fair Housing Defense blog readers are aware, the issue of questionable/fraudulent medical verifications for certain assistance animals has vexed both the professional apartment industry and airlines for some time now. In an effort to provide additional guidance for air travel, last week the U.S. Department of Transportation (DOT) published a final rule which provides that airlines “are not required to recognize emotional support animals as service animals and may treat them as pets.”

In short, the DOT decision means that while service dogs may continue to fly without paying a fee, emotional support animals do not receive the same level of protection under the law. The final rule defines a service animal 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.” While emotional support animals provide comfort and support for their owners, unlike service animals, they are not trained to perform any specific tasks. In the explanatory materials describing the rule, DOT wrote that approximately 15,000 comments were received on this issue, which is indicative of strong views on both sides.

Airlines sought this change, in part, because of a belief that passengers were fraudulently passing off their pets as the more loosely defined category of emotional support animals in an effort to avoid paying a fee. Additional reasons for the new rule include what has been an increase in complaints from passengers concerning misbehavior by emotional support animals and problems with what is described as “requests to transport unusual species of animals onboard aircraft.”

Not surprisingly, airlines praised the new rule as something drafted to protect the public and air crews. Once it becomes effective, the rule permits airlines to mandate passengers traveling with service animals to complete a form “attesting to the animal’s training and good behavior, and certifying the animal’s good health.” Advocates for those mental health conditions criticized the DOT rule as unfairly singling out those with legitimate mental health disabilities who need their emotional support animal.

Since the DOT rule was published, I have been asked by three clients if the housing industry can rely on this new airline guidance. The answer, for now, is no. This rule was issued by the DOT and limited to air travel.

Just A Thought.

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