Emotional Support Animals Are Considered Pets Not Service Animals By US Department Of Transportation.

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U.S. Department of Transportation (“the Department” or “DOT”) announced it final rule on “Traveling by Air with Service Animals” on December 2, 2020.  The rule will be effective 30 days after the date of publication of the final rule in the Federal Register.

The purposes for the regulatory amendments were first described in the Department’s notice of proposed rulemaking published on February 5, 2020 and repeated in brief in final rule.

”This final rule is prompted by a number of compelling needs to revise these regulations: (1) the increasing number of service animal complaints received from, and on behalf of, passengers with disabilities by the Department and by airlines; (2) the inconsistent definitions among Federal agencies of what constitutes a “service animal;” (3) the disruptions caused by requests to transport unusual species of animals onboard aircraft, which has eroded the public trust in legitimate service animals; (4) the increasing frequency of incidents of travelers fraudulently representing their pets as service animals; and (5) the reported increase in the incidents of misbehavior by emotional support animals.

The Department received, reviewed and responds to the ~15,000 comments to its February 5, 2020 Notice of Proposed Rulemaking in the final rule, as well as to the congressional mandate, in the FAA Reauthorization Act of 2018, requiring “the Department to conduct a rulemaking proceeding on the definition of the term “service animal” and to develop minimum standards for what is required for service and emotional support animals.”

One of the biggest differences between “service” animals and “emotional support” animals are the training requirements for these animals, or the lack thereof.  “Service” animals, servicing individuals suffering from disabilities as defined in the Americans with Disabilities Act and as further defined by the Department of Justice.

Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability . . . 28 CFR § 35.104, 28 CFR § 36.104 Definitions.

The Department’s prior regulation recognized two types of service animals.  (1) Those as defined by DOJ  to be recognized as “service” animals (but not including miniature horses), and (2) “emotional support” animals defined as “any animal shown by documentation to be necessary for the emotional well-being of a passenger.”  Emotional support animals do not have to be specially trained to service a particular purpose or assist with a task, but were “expected to be trained to behave in public.”

The expanded number of alleged emotional support animals traveling on airlines had become an issue of concern when they failed to behave in public as expected, creating the need for the Department’s proposed and now final rule.

As summarized in the Executive Summary

“This 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.  It allows airlines to recognize emotional support animals as pets, rather than service animals, and permits airlines to limit the number of service animals that one passenger can bring onboard an aircraft to two service animals.

Additional amendments and provisions are provided in the following table, also included in the final rule.

  1. SUMMARY OF THE MAJOR PROVISIONS
Subject Final Rule
Definition of Service Animal A service animal is 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.
Emotional Support Animals Carriers are not required to recognize emotional support animals as service animals and may treat them as pets.
Treatment of Psychiatric Service Animals Psychiatric service animals are treated the same as other service animals that are individually trained to do work or perform a task for the benefit of a qualified individual with a disability.
Species Carriers are permitted to limit service animals to dogs.
   
Health, Behavior and Training Form Carriers are permitted to require passengers to remit a completed hardcopy or electronic version of the Department’s “U.S. Department of Transportation Service Animal Air Transportation Form” as a condition of transportation.
Relief Attestation Carriers are permitted to require individuals traveling with a service animal on flights eight hours or longer to remit a completed hardcopy or electronic version the Department’s “U.S. Department of Transportation Service Animal Relief Attestation” as a condition of transportation.
 
Number of Service Animals per Passenger Carriers are permitted to limit the number of service animals traveling with a single passenger with a disability to two service animals.
Large Service
Animals
Carriers are permitted to require a service animal to fit on their handler’s lap or within its handler’s foot space on the aircraft.
Control of Service Animals Carriers are permitted to require a service animal to be harnessed, leashed, or otherwise tethered in areas of the airport that they own, lease, or control, and on the aircraft.
Service Animal
Breed or Type
Carriers are prohibited from refusing to transport a service animal based solely on breed or generalized physical type, as distinct from an individualized assessment of the animal’s behavior and health.
Check-In
Requirements
Carriers are not permitted to require a passenger with a disability to physically check-in at the airport, rather than using the online check-in process, on the basis that the individual is traveling with a service animal. Airlines may require a passenger with a disability seeking to travel with a service animal to provide the service animal form(s) at the passenger’s departure gate on the date of travel.
Advance Notice Requirements Transportation Form and, if applicable, a U.S. Department of Transportation Service Animal Relief Attestation up to 48 hours in advance of the date of travel if the passenger’s reservation was made prior to that time.

Undoubtedly, passengers and the airline industry will continue to face legal challenges about the transportation of service and emotional support animals on planes.

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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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