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23 December 2020
The US Department of Transportation (DOT) has issued a new regulation, "Traveling by Air with Service Animals", which substantially revises its rules governing the transportation of service animals on board aircraft. Under the new regulation, airlines will no longer be required to transport emotional support or comfort animals in cabin. Airlines will be required to transport only service dogs (and not other species) and a passenger with a disability may bring a maximum of two service dogs in cabin. Airlines will continue to be required to accommodate psychiatric service dogs. Airlines will be allowed to require passengers to complete a DOT form attesting that their animal is a legitimate service dog that is trained and vaccinated and will behave appropriately during the journey.
The final rule will become effective on 11 January 2021.
The Air Carrier Access Act (ACAA) (49 USC § 41705) prohibits discrimination in air transportation based on disability, but does not prescribe precisely how the DOT, the responsible federal agency, should prohibit such conduct. Over the years, the DOT has issued regulations and guidance under this statutory authority, including on service animal transport in air travel. Those regulations and guidance documents required airlines to allow passengers claiming to have a disability to be accompanied in cabin not just by service animals that assist with physical disabilities such as seeing eye dogs, but also by emotional support animals that do not have to be trained to perform any task but rather simply provide comfort to the individual.
In recent years, airlines experienced a huge escalation in the number of animals being presented for transportation in cabin as emotional support animals. The number of passengers travelling with emotional support animals jumped from 1.02 million in 2018 to 1.13 million in 2019 – almost double the increase in the number of passengers travelling with pets. These included not only dogs, but also a wide range of other species (including peacocks, ducks, turkeys, pigs and iguanas). In addition, because emotional support animals need not undergo any particular training, airlines experienced an increased number of incidents in which such animals:
In promulgating the new rule, the DOT recognised that "the statute requires airlines to provide accommodations that are reasonable given the realities and limitations of air service and the onboard environment of commercial airplanes", but acknowledged that "animals on aircraft may pose a risk to the safety, health, and well-being of passengers and crew, and may disturb the safe and efficient operation of the aircraft".
The DOT received more than 15,000 comments on its notice of proposed rulemaking, including from individuals with disabilities, airlines, flight attendants, airports, aviation transportation stakeholders and members of the public.
The most significant aspects of the DOT's final rule are as follows.
Definition of 'service animal'
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 is limiting the species of service animals to dogs only because "dogs are the most common animal species used by individuals to mitigate disabilities both on and off aircraft"; therefore, such an approach "will permit the vast majority of service animal users to travel with their service animals while also minimizing confusion and safety concerns for airlines, airports, and individuals with disabilities".
Emotional support animals
Airlines need not recognise emotional support animals as service animals. The exclusion of emotional support animals (and species other than dogs) from the definition of service animal more closely aligns with the Department of Justice's regulations under the Americans with Disabilities Act, which do not require the accommodation of emotional support animals in places of public accommodation, such as restaurants, hotels, theatres and airports.
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. The DOT will no longer draw a distinction between psychiatric service animal users and other service animal users, but will monitor to determine "whether unscrupulous individuals are attempting to pass off their pets as service animals for non-apparent disabilities, including (but not limited to) psychiatric disabilities".
Health, behaviour and training form and relief attestation form
Airlines may require disabled passengers who are travelling with a service animal to submit a DOT form attesting the animal's training and good behaviour and certifying its good health (Air Transportation Form). For flight segments of eight hours or more, airlines may require passengers to submit a DOT form attesting that the animal has the ability either not to relieve itself on such a long flight or to relieve itself in a sanitary manner (Relief Form). Airlines cannot require any other documentation as a condition of transport.
Forms in advance of travel
Airlines may require a service animal user to provide forms up to 48 hours in advance of the date of travel if the passenger's reservation was made prior to that time or, in the alternative, require a passenger with a disability seeking to travel with a service animal in the cabin to provide the forms at the passenger's departure gate on the date of travel.
Number of service animals per passenger
Airlines may limit to two the number of service animals travelling with a single disabled passenger. For passengers who seek accommodation for two service animals, airlines may require a separate attestation form for each animal.
Service animal size
Airlines may require that a service animal fit on the handler's lap or within the handler's foot space on the aircraft. If the service animal does not fit in their handler's foot space, airlines must move the handler to another seat location within the same class of service where the animal can be accommodated, such as a seat next to an empty seat on the aircraft, if available. If there are no alternatives available to enable the passenger to travel with the service animal in the cabin, airlines must offer passengers the opportunity to transport the service animal in the cargo hold free of charge or travel on a later flight (to the extent that there is space on a later flight and the transport is consistent with the safety requirements).
Requiring physical airport check in
Airlines may not require that a passenger physically check in at the airport (as opposed to online) solely on the basis that they are travelling with a service animal.
Service animal leashing, harnessing or tethering
Airlines may require that service animals be harnessed, leashed or otherwise tethered on board an aircraft and in areas of the airport that they own, lease or control. Non-physical means of control over the service animal, such as voice commands or signals, are not sufficient because they could implicate aircraft safety. If a passenger with a disability cannot physically control the service animal, even if the reason is related to the person's disability, airlines may deny transport of the animal in the cabin.
Service animal denial of transport
Airlines may deny transport of a service animal if:
No breed restrictions
Airlines may not refuse transport of a dog that is individually trained to do work or perform tasks for the benefit of a qualified person with a disability and that otherwise satisfies the requirements of a service animal based solely on the dog's breed or generalised type. However, airlines may "make an individualized assessment based on reasonable judgement and objective evidence to determine if a service animal poses a direct threat to the health or safety of others". Given that foreign jurisdictions may prohibit the transport of certain breeds, the DOT's rule allows airlines to deny transport to a service animal if carriage would violate foreign government health or safety requirements.
Damage caused by service animals
Airlines may charge passengers travelling with service animals for damage to the aircraft caused by the service animal as long as the airline charges passengers without disabilities for similar repairs or damage.
For further information on this topic please contact David Heffernan or Rachel Welford at Cozen O'Connor by telephone (+1 202 912 4800) or email (email@example.com or firstname.lastname@example.org). The Cozen O'Connor website can be accessed at www.cozen.com.
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