DOT Announces Final Rule: No More ESAs on Flights

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On December 2, 2020 the Department of Transportation (DOT) released its final rule for accommodating service and emotional support animals as a reasonable accommodation request under the Air Carrier Access Act (ACAA). Most notably, air carriers will no longer be obligated to provide access for emotional support animals (ESA) in the airplane cabin.

This is good news (with a big caveat). As previously stated in our analysis of the proposed rule, the final provisions correct the most challenging animal-related issues that plague air travel. Moreover, the DOT is, for the most part, fair in balancing the needs of those living with a disability with the health and safety of the other travelers and flight crew.

The new regulations make the following important changes:

1. Emotional support animals are no longer eligible for an accommodation
Not only will this lower the number and type of animals that are allowed in the airplane’s cabin, but it will decrease the confusion between the verification requirements needed under the ACAA with those of the Fair Housing Act (FHA). This reduces the burden imposed on clinicians who were being asked to provide verification letters under two (2) different standards.

But here’s the caveat: It’s disappointing that the DOT rejected our recommendation to align the definition of assistance animal with that of the Fair Housing Act (FHA), allow assistance animals in the cabin only if contained, and waive the pet fee for all animals in this category. This failure to acknowledge the importance of assistance animals as a medical aid trivializes their importance and is dismissive of individuals who utilize them.

Their rationalization, that imposing different requirements for one category of animals perpetuates a “tiered systems that give rise to confusion and the continued opportunity for abuse and increased safety risk,” falls flat. (p. 22) We already live in a world that has different eligibility and verification requirements for the two categories of animal aids. Moreover, using the system that is already in place under the FHA imposes no additional burden on passengers and doesn’t elevate a safety risk when assistance animals would still be prohibited from flying in the cabin untethered. And I’m still waiting to see evidence of rampant and systematic fraud. What is considered “abuse” is often better characterized as misunderstanding the laws and regulations.

2. The definition of service animal is now aligned with the ADA
Previously, the ACAA treated “psychiatric service animals” differently than service animals that aid individuals living with other types of disabilities. This new policy recognizes that differentiating between the two is discriminatory and only stigmatizes mental health impairments.

3. Only dogs may be used as a service animal
While airlines no longer have to worry about cats, pigs, and rabbits in the aisle, the ACAA will also prohibit the use of miniature horses in the cabin, even though they are allowed as service animals under the ADA.

4. Airlines may not impose breed, size, weight, or other arbitrary restrictions on service animals
Service animals may be excluded if the specific animal in question poses a direct threat to the health and safety of others that cannot be mitigated by other means. Airlines may only exclude a service animal based on an individualized assessment of objective evidence of the dog’s behavior.

However, air carriers are not required to make an accommodation for a specific dog if the animal is not permitted in the foreign destination.

5. Service animals must be leashed at all times and must fit in the allotted space
While the ADA permits individuals to control their service animal with verbal commands or signals, the ACAA is requiring service animals to be leashed or tethered at all times on the airplane even if it interferes with the animal’s work due to the confined space.

Moreover, the DOT has determined that individuals with service animals are not entitled to more space than they purchased and the dog must fit in the foot space or lap. However, large dogs are not automatically prohibited in the cabin as many are trained to lie in small spaces. If the service animal does not fit, the airline crew are obligated to move the individual and the animals to another seat in the same class if it’s available. If that is not an option, the airline must offer to fly the dog in the cargo hold with other pets free of charge or travel on a later flight where space may be available.

The new rule also limits individuals to bringing two (2) service animals in the cabin.

6. Determining service animal eligibility is similar to the process under the ADA
To establish eligibility for a service animal during a flight, air carriers may assess the following:

  • Whether the animal is needed because of a disability and what work or task has the animal been trained to perform (this is answered through the attestation form, see #7)
  • Observing the animal’s behavior
  • Physical indicators, such as harnesses and vests

While the ADA does not allow identification tags and similar paraphernalia as evidence of a disability or related need for a service animal, the ACAA is permitting, but not requiring, air carriers to use them in the evaluation process as they deem appropriate. This is disappointing as such items are legally irrelevant and maintaining the notion that they confer any rights only perpetuates the confusion.

7. Passengers with service animals must provide attestation forms vouching for the dogs’ health, training, and behavior
In another departure from the ADA, individuals must provide airlines with the DOT’s Behavior and Training Attestation Form to establish eligibility for a service animal. Recognizing that requiring letters from a veterinarian or dog trainer is impractical and unfeasible (particularly for people of limited means), the attestation form instead makes the individual certify that the service animal:

  • Is current on all vaccinations and free from parasites
  • Has been trained to perform a task that alleviates the symptom or effect of the individual’s disability
  • Has been trained to behave in public
  • Must be under the individual’s physical control at all times
  • Will be treated instead as a pet if the dog misbehaves and the handler cannot correct the behavior
  • Will obligate the individual to pay for any damage caused by the dog, as long as all passengers are liable for similar damages

For flights longer than 8 hours, airlines can require individuals to provide a Relief Attestation Form that the service dog will not need to eliminate waste on the flight or can do so in a sanitary manner.

8. The attestation form must be current
“Current” is defined as completed by the passenger on or after the day the flight is booked. (p. 117) The DOT also makes a distinction that the form should “be completed for each trip but not each time a service animal user travels.” (p. 75) A round-trip ticket is considered a single trip and as such, an attestation form would not be required for the return flight.

9. Individuals with service animals must be permitted to check-in online
Airlines may no longer require passengers flying with service animals to check-in at the gate. Not only does this impose a burden on individuals by prohibiting them from checking-in online, but it also makes it difficult and time-consuming for the crew to review the documentation at this late juncture.

Air carriers may require that the attestation form is submitted up to 48 hours before the flight. This also provides an opportunity for individuals to correct any errors or provide missing information if the airline believes the form is incomplete. However, air carriers must provide a grace period for for reservations that are booked less than 48 hours in advance of the flight.

10. The rule provides an enforcement mechanism if the airline suspects fraud
Airline crew should report instances of potential fraud to the Office of Aviation Consumer Protection (at safalsestatementreports@dot.gov) with evidence supporting the claim.

These new regulations provide clarity and much needed change. Hopefully, the DOT will revisit the issue of providing accommodations for assistance animals in the future.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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