DOT PUBLISHES FINAL STATEMENT OF ENFORCEMENT PRIORITIES REGARDING SERVICE ANIMALS
September 2, 2019
On August 21, 2019, the U.S. Department of Transportation (DOT) published in the Federal Register its Final Statement of Enforcement Priorities Regarding Service Animals to address certain issues that were not included in the Interim Statement (published on May 23, 2018) and to further define the Department’s enforcement focus with respect to issues relating to service animals, or those with special training to assist passengers with disabilities, e.g. seeing eye dogs, and emotional support and psychiatric support animals (ESAs and PSAs, respectively), or those without special training, but that provide therapeutic support to passengers through affection and companionship. The policies in the Final Statement became effective upon its publication date, August 21, 2019, but DOT intends to refrain from taking enforcement action against airlines that are noncompliant with the Final Statement for 30 days – until September 20, 2019, after which time carriers are expected to achieve full compliance.
Below are summaries of the pertinent terms in the Final Statement:
- Species and Breed Restrictions. DOT will focus its resources on ensuring that U.S. carriers continue to accept the most commonly used service animals (i.e., dogs, cats, and miniature horses) for travel. Categorically refusing to transport all service animals that are not dogs, cats, or miniature horses violates the current disability regulation, however, carriers may continue to deny transportation of snakes, other reptiles, ferrets, rodents, and spiders. Foreign carriers may still continue to limit service animals, including ESAs and PSAs, to dogs, however, carriers may not restrict the type of dog breed used to assist a passenger with a disability (e.g., a carrier may not have a policy banning “pit bull type dogs”).
- Number Restrictions. Airlines that limit passengers to one ESA and a total of three service animals if needed will not be subject to enforcement action.
- Weight Restrictions. Airlines may not impose a categorical restriction on service animals over a certain weight, without regard to specific factors that would preclude transport of that animal in the cabin.
- Age Restrictions. DOT does not anticipate exercising its enforcement resources to ensure the transport of service animals that are clearly too young to be trained to behave in public. Specifically, DOT stated that it would not take enforcement action against an airline for having a policy that denies the transportation of service animals younger than four months, as DOT does not expect service animals to have completed public training within four months.
- Flight-Length Restrictions. Airlines may not categorically restrict service animals on flights scheduled to last eight hours or more. On flights scheduled to last eight hours or more, airlines may ask for 48 hours’ advance notice, early check-in, and documentation that the animal will not need to relieve itself on the flight or that it can do so in a way that does not create a health or sanitation issue on the flight.
- Proof that an Animal is a Service Animal. If a passenger’s disability is unclear, airlines may ask limited questions to determine the passenger’s need for the animal even if the animal has other indicia of being a service animal such as a harness, vest, or tag.
- Documentation Requirements. DOT does not anticipate taking enforcement action against an airline for asking users of any type of service animal to present documentation related to the animal’s vaccination, training, or behavior, so long as it is reasonable to believe that the documentation would assist the airline in determining whether an animal poses a direct threat to the health or safety of others. DOT will monitor airlines’ animal documentation requirements to ensure that they are not being used to unduly restrict passengers with disabilities from traveling with their service animals. Airlines may ask or encourage an ESA and PSA user to submit the medical form provided on the airline’s web site, but may not reject documentation provided by an ESA or psychiatric support animal (PSA) user from a licensed mental health professional treating the passenger that meets all of the criteria found in the rule itself.
- Lobby Verification. Airlines may require passengers with ESAs or PSAs to present service animal documentation in the lobby/ticket counter area, rather than the gate/sterile area.
- Advance Notice/Check-In. Airlines may require ESA/PSA users to provide up to 48 hours’ advance notice of travel with an ESA/PSA, and may require ESA/PSA users to appear in the lobby for processing of service animal documentation up to one hour prior to the check-in time for the general public. However, airlines may not require non-ESA/PSA users to provide advance notice of travel with a service animal, or require non-ESA/PSA users to appear in the lobby for processing of service animal documentation.
- Containment. DOT will exercise its discretion with respect to containment issues for all service animals on a case-by-case basis, with a focus on reasonableness. For example, in general, tethering and similar means of controlling an animal that are permitted in the ADA context would appear to be reasonable in the context of controlling service animals in the aircraft cabin. Other factors bearing on reasonableness include, but are not limited to, the size and species of the animal, the right of other passengers to enjoy their own foot space, and the continued ability of the animal to provide emotional support or perform its task while being restrained or kept in a pet carrier.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com or 202-659-6622); Drew Derco (dderco@eckertseamans.com or 202-659-6665), or Alexander Matthews (amatthews@eckertseamans.com or 202-659-6633).
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