The Zoo at 38,000 Feet

Womble Bond Dickinson
Contact

Womble Bond Dickinson

[co-author: Kim Beane, and Suzanne Pierberg]

Image for post

Photo by HAL9001 on Unsplash

The final rule on Traveling by Air with Service Animals in the Air Carrier Access Act (ACAA), codified in 14 CFR Part 382 and published in December, took effect January 11, 2021.

Many airlines are announcing their adoption of the new rule prior to the onset of overwrought travelers emerging from the torment and hardship of 2020, ready to go somewhere — anywhere — just to go! Unfortunately for them, however, they will no longer be allowed to take their “emotional support” animal along with them free of charge.

Until this this rule took effect, airline carriers were required to permit these animals in the cabin with passengers. Section 382.117 of the ACAA, which has since been removed, allowed passengers with current documentation on the letterhead of a licensed mental health professional (e.g., psychiatrist, psychologist, licensed clinical social worker, including a medical doctor) to assert that he/she was currently treating the passenger with a DSM-IV mental disorder and that the passenger needed the emotional support or psychiatric service animal as an accommodation on the flight.

A subsection of the aforementioned Act indicated that airlines were never required to accommodate “certain unusual service animals (e.g., snakes, other reptiles, ferrets, rodents, and spiders)” but that “all other animals” should at least be examined, taking into consideration the weight and size of the animal, whether it would threaten other passengers, etc.

Predictably, as in the “give them an inch and they will take a mile” proverb, chaos ensued. Airlines heroically made attempts to accommodate animals as varied as miniature horses, a kangaroo, a duck, a miniature pig, a marmoset monkey, a turkey, snakes, and a goldfish, among others. A peacock was banned prior to boarding, a ferret held up a flight because its papers weren’t in order, and a dwarf hamster got flushed down an airport commode when it was denied access to the plane.

It was partially due to this type of abuse of the system that the DOT decided to change the rule. Emotional support letters were easily bought online, and cabins were beginning to look like zoos. Now airlines are allowed to treat emotional support animals as pets, rather than service animals and the definition of a service animal is:

A service animal is 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.

The DOT specifically rejected a categorical exclusion for particular breeds or types of dogs as service animals, and the rule prohibits airlines from refusing to accommodate a dog that is individually trained for the benefit of a person with a disability based only on the dog’s breed, e.g., a pit bull. Airlines that have historically banned pit bull type dogs will have to lift the ban if the dog otherwise meets the requirements for trained service animals.

The DOT rule does not give specific examples of tasks to be performed, but the Americans with Disabilities Act at 28 CFR § 35.104 provides guidance, listing the tasks of service animals as: assisting with navigation, alerting to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting during seizures or with psychiatric and neurological disabilities, retrieving items such as medicine or the telephone, and providing physical support and assistance with balance and stability, among others.

Training of the dog does not require the cost of training by third party schools or organizations. In fact, the service animal users are free to train their own dogs to perform the needed tasks or functions if they are able. Some tasks, such as detecting onset of a seizure, will necessarily require specialized training by a professional.

Prior to boarding, the Service Animal Health Behavior Form must be completed. For flights over eight hours, to ensure the animal either will not need to relieve himself or can do so in a way that does not create a health or sanitation issue, the Service Animal Relief Attestation Form will also need to be completed

Unlike the prior rule with emotional support animals, however, certification of a mental health disorder, is not required. Realizing that some of the concerns that led DOT to adopt heightened documentation and check-in requirements for users of psychiatric service animals are not unique, they do not make a distinction between psychiatric service animals (where the disability may not be obvious) and other service animals. If there is a sudden “notable increase” in passengers with mental health related service animals, the rule may be revisited and, presumably, amended.

As of this writing, American, United, Delta, Alaska and Jet Blue Air Lines have all banned the free transport of emotional support animals in their cabins. There are different dates of effectiveness, however, so people should check with the individual airlines if they have already booked a ticket. Travelers may still be able to fly with their pets in the cabin if they pay the appropriate fees. If you previously flew with your Chihuahua in the cabin as an emotional support animal, for free, you can probably still get her in the cabin as a pet, for a fee, and if you meet other airline requirements (COVID-19 regulations may currently affect pet travel policies for some airlines).

[View source.]

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.

© Womble Bond Dickinson | Attorney Advertising

Written by:

Womble Bond Dickinson
Contact
more
less

Womble Bond Dickinson on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.