The regulation that provides protections for service or assistance animals on airplanes is the Airline Carrier Access Act (ACAA), 49 U.S.C. Section 41705). Administered by the United States Department of Transportation, this statute prohibits discrimination of airline service based on a mental or physical disability of a passenger. The ACAA was enacted in 1986 for US-based airlines and amended in 2000 to include foreign carriers.

Anyone who has flown on a US-based airline in the past 5 years will attest that the number of animals flying in the cabin has increased notably. So have airline charges for small, non-service dogs and cats flying in pet carriers in the cabin. Oftentimes, pet owners pay more than their own ticket to fly their pet. All airline pet policies require many larger pets to fly in the cargo hold due to their size.

When passengers realized that they could fly their pet for free by claiming their pet as an emotional support animal (ESA) with only a letter from a doctor or other medical professional, the popularity of emotional support animals on airplanes soared. It is unclear whether it was the financial benefit or the anxiety that comes with flying a pet in the cargo hold that fueled the increase. What is very clear is that it became a real problem for the airlines very fast.

The variety of animals that were brought onboard under the protection of the ACAA was astounding. Passengers found themselves flying beside mice, ferrets, rats, birds, hamsters, squirrels, monkeys, ducks, turkeys, rabbits, miniature horses and peacocks to name a few. What followed were multiple incidents of offensive behavior, aggression to passengers and crew, damage to the aircraft and ultimately an end to the public trust for legitimate service animals.

Because the ACAA did not clarify the definition of a service animal, the airlines were basically helpless to stop the surge of requests from owners of ESAs. Additionally, because emotional support animals generated no revenue for the airlines, all damages and liabilities incurred by ESAs had to be borne by other airline resources.

On February 5, 2020, the DOT issued a Notice of Proposed Rule Making providing notice of the amendment and seeking comments from the public, the airlines and various agencies. As the situation worsened, in May, 2020, the DOT issued an Advance Notice of Rulemaking which allowed the airlines to specify what animals they would accept as emotional support animals. This may have helped the airlines control the influx of non-domesticated animals they were previously forced to accept, but there were more issued to address.

In order to help mitigate the issues, the DOT sought to align the definition of a service animal to that reflected in the American with Disabilities Act[1] with this amendment. This act does not provide protections for emotional support animals in public spaces such as restaurants, hotels, theaters, or airports. It does, however, include miniature horses which the DOT has deferred to the airlines to decide whether or not they will accept them.

Why did the DOT propose the amendment?

Aside from the inconsistent definition of a service animal in the ACAA, the DOT proposed the amendment for the following reasons:

• The large number of complaints from passengers with legitimately trained service animals, other passengers and airline employees and crews.
  
• Disruptions caused by the forced acceptance of non-domesticated and and other wildlife in a close environment of the cabin.
  
• The high number of passengers flying with documentation from online mental health professionals who were willing to provide pet owners with emotional support animal and psychiatric service animal documentation for a fee[2] allowing them to misrepresent their pet as a service animal.

• The high number of incidents of bad behavior from emotional support animals on airplanes that were not trained to behave in the confined and stressful cabin environment. As no kind of confinement was required, the behavior of ESAs could put other passengers, crew and the operation of the airline at risk.
  
• To clarify how the airline should regulate with respect to these issues.
  
• A Congressional mandate that called for minimum standards for service animals through the FAA Reauthorization Act of 2018.

What does the amendment cover?

These are the deficiencies in the legislation that the amendment addresses:

• Defines a service animal as a dog, regardless of breed, that is individually trained or able to provide assistance to a qualified person with a disability[3]. Because dogs can be task-trained to perform many different tasks and functions, they would be most qualified to be a service animal.
  
• Requires the airline not to discriminate against any specific dog breeds.
  
• Requires the airline to treats psychiatric dogs[4] the same as service dogs with regard to document provision, check in procedures and the like.
  
  
• Allows airlines to fly emotional support animals as regular pets, not service animals.
  
• Allows airlines to limit the number of service animals per passenger to two.
  
• Allows airlines to require the submission of a DOT form attesting to dog training and good behavior and health of the service dog.
  
• For flights more than 8 hours, allows the airlines to require that a DOT form is submitted addressing the service dog’s ability to relieve itself during the flight.
  
• Allows airlines to require these forms to be submitted at least 48 hours in advance, online when booking or at check in. The convenience of online booking and check in cannot be denied passengers flying with a service animal.
  
• Allows airlines to require that service dogs are harnessed, leashed or otherwise tethered.
  
• Addresses safe transport of larger service dogs.
  
• Allows airlines to hold passengers flying with service dogs liable for damage caused to the aircraft in certain circumstances.

Breaking down the comments

There were over 15,000 comments accepted from various agencies, associations and the public at large. About 10,000 comments were directed to the transport of emotional support animals, 3,000 in favor of the amendment and 6,000 against.

Predictably, airline associations and agencies that represent the disabled argued that untrained emotional support animals were substantially more likely to misbehave in a stressful environment causing a risk to operational safety. Because emotional support animals on airplanes are not required to be contained, they are more likely to encroach on other passengers and affect the operations of the crew.

Additionally, there was concern over the increased fraudulent documentation submitted to the airlines from owners misrepresenting their need for a service animal with a fee-based online evaluation involving minimal therapeutic interaction.

Other supporters of the amendment commented on the medical affects associated with more exposure to emotional support animals on airplanes such as allergies. This is not a new argument and has been mitigated on some airlines with enhanced air filtration; however, it merits consideration.

There were also comments from medical healthcare workers and professionals as well as individuals which did not support the amendment.

The primary concern was that changing the definition of an emotional support animal would discriminate against people with legitimate psychological issues such as PTSD, autism, debilitating depression, anxiety and other emotional and mental disabilities.

The financial impact of having to pay for pets who formerly could fly for free was also raised in the comments.

Disability rights organizations were split down the middle. Some argued that, due to the increased number of emotional support animals in the cabin was affecting public trust in legitimate service animals. Others argued that physical needs for service animals were taking precedence over mental disabilities.

Many organizations such as the Humane Society did suggest a separate classifications of service animals with stricter requirements such as behavior attestations and proof of in-office visits; however, they did not agree that containment should be required. These comments were not considered due to the confusion they would cause and the “continued opportunity for abuse and increased safety risk.”[5]

Can my emotional support dog qualify as a psychiatric dog?

To qualify as a service dog, your dog must undertake a minimum of 120 hours of training over a period of 6 months according to the Association of Assistance Dog Partners. Thirty hours must be spent in public settings socializing the dog and enforcing acceptable behavior. Dogs must be sociable and trainable.

Training allows service dogs to perform specific tasks for their handlers such as guiding individuals with vision impairments, retrieving items for people with mobility issues, alerting to changes in glucose levels to name a few. The exposure involved in training will teach the dog how to behave in busy airports and crowded aircraft cabins thus reducing risks to other passengers in the terminal as well as passengers and crew in the cabin.

Psychiatric dogs are also defined as doing work or performing tasks for their handlers that involves training such as alerting for oncoming seizures or assisting those with mental or intellectual disabilities.

Advocates of the amendment argued that requiring an owner of an emotional support animal to qualify its dog as a psychiatric dog would be an incredible burden and, in the end, their benefit would not include a specific task but rather simply the comfort that their presence provides.

It is important to note that the DOT did recognize that the rule does not require service animal users to incur the cost of training by third party schools or organizations; service animal users are free to train their own dogs to perform a task or function for them[7]

What is the benefit of the amendment?

• Reduction of confusion as to the definition of a service animal by aligning with the ADA regulation.
  
• Overall reduction of incidents which previously were generally caused by untrained animals flying in the cabin
  
• Less liability to the airlines for damage to the aircraft caused by any animal, whether service or emotional support.
  
• Less potential allergic reactions from other passengers.
  
• Allows the airlines to fly other animals in the cabin pursuant to their pet policies should they desire to do so.

Conclusion

Commencing January 4, 2020, the airlines will have the right to classify all emotional support animals as pets, subject to their pet policies. Due to the container requirement, only small pets will be able to fly in the cabin in airline-compliant pet carriers. Larger pets will need to fly in the cargo hold as either checked baggage or air cargo.

We have not yet seen changes to airline policies related to emotional support animals; however, we expect the airlines to revise their policies very soon. Find airline policies for emotional support animals on airplanes.

Footnotes

[1] U.S. Dept. of Justice ADA Requirements of Service Animals

[2] Service Animal Final Rule, page 14.

[3] Service Animal Final Rule, page 9

[4] Service Animal Final Rule, page 23 A psychiatric service animal, like a service animal, is individually trained to do work or perform tasks for a passenger with a psychiatric, intellectual or other mental disability. (e.g. seizure disorder or diabetes)

[5] Service Animal Final Rule, page 23

[6] IAADP Minimum Training Standards

[7] Service Animal Final Rule, page 23