U.S. DEPARTMENT OF TRANSPORTATION ANNOUNCES FINAL RULE ON SERVICE ANIMALS
December 8, 2020
On December 2, 2020, the U.S. Department of Transportation published its long awaited final rule on “Traveling by Air with Service Animals”, available here, which now defines a service animal as a “dog”, allows emotional service animals to be treated as pets, and regulates the documentation, number, placement in the cabin, and harnessing of service animals. DOT received more than 15,000 comments from interested parties including airlines, trade associations, consumer and disability advocacy groups, medical professionals, individual travelers, and others on its February 5, 2020 Notice of Proposed Rulemaking – a testament to the importance of the issue. The final rule revises the Air Carrier Access Act (ACAA) regulations on the transportation of service animals by air, with the intent to provide reasonable accommodations for individuals traveling with service animals while balancing those needs with the health and safety of other passengers and crew.
Below is a general summary of the issues discussed in the final rule:
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Definition of a Service Animal. The 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. Airlines are not required to transport other species of animals, such as cats, miniature horses, and capuchin monkeys that assist individuals with disabilities in the cabin for free, although they are free to do so pursuant to an established airline policy.
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Emotional Support Animals. Under the final rule, “emotional support animals” are no longer required to be treated as service animals. Rather, airlines may treat emotional service animals as pets (and, importantly, charge corresponding pet fees or require their carriage in the cargo compartment). This change more closely aligns DOT’s rules with the Department of Justice’s (DOJ) definition of a service animal under the American’s with Disabilities Act (ADA), which does not require emotional support animals to be accommodated in public spaces such as restaurants, hotels, theaters, or airports.
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Psychiatric Service Animals. The final rule requires airlines to treat psychiatric service animals the same as other service animals, meaning psychiatric service animal users will no longer be required to provide a letter from a licensed mental health professional detailing the passenger’s need for the animal, nor will they be required to check in one hour before the check-in time for other passengers.
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Service Animal Air Transportation Form. The final rule allows airlines to require passengers wanting to travel with a service animal to provide a new “Service Animal Air Transportation Form”, developed by DOT. The form attests to a service animal’s health, behavior and training. The form developed by DOT is the only form that airlines may require of passengers traveling by air with service animals.
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Service Animal Relief Form. For flight segments of eight hours or more, airlines may require a “Relief Form” attesting that the service animal has the ability not to relieve itself on a long flight or to do so in a sanitary manner. Airlines are free to accept a service animal for transport on a flight segment over eight hours without providing the Relief Form; however, if an airline chooses not to require the form, the airline may not deny transportation to a service animal on flight segments longer than eight hours based on concerns about the animal’s elimination functions.
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Timing for Submission of Forms. The final Rule permits carriers to require individuals traveling with a service animal to provide the DOT service animal form(s) up to 48 hours in advance of the date of travel if the passenger’s reservation was made prior to that time. Alternatively, airlines may require individuals to provide the DOT service animal form(s) at the passenger’s departure gate on the date of travel. Users cannot be required to complete the form more than once if he or she purchased a round-trip ticket – the form only needs to be completed for each trip but not each time a service animal travels. Carriers may require that the service animal forms be “current,” which DOT defines as forms completed by the passenger on or after the date that the passenger purchased his or her ticket.
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Number of Service Animals Allowed. The final rule allows airlines to limit the number of service animals traveling with a single passenger with a disability to two (2) service animals. Carriers may require that both service animals fit into the individual’s allotted space without encroaching into the space of another passenger, and may require the passenger to complete two separate Service Animal Air Transportation Forms (one for each animal), to verify that each qualifies for appropriate accommodation as a service animal to accompany the passenger on the flights.
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Placing Service Animals at the Feet of the Passenger. Under the final rule, carriers may require a service animal to fit within its handler’s foot space on the aircraft or be placed on the passenger’s lap. With that said, larger service animals are not automatically prohibited from traveling with a passenger with a disability if they do not fit into their handler’s foot space, as the rule continues to require carriers to accommodate such animals by moving them to another seating 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. Importantly, if no alternatives are 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 there is space available on a later flight and the transport is consistent with the safety requirements.
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Harnessing, Etc. The final rule allows carriers to require that service animals be harnessed, leashed, or tethered at all times in the airport and on the aircraft, even in instances where the device interferes with the service animal’s work or the passenger’s disability prevents use of these devices. If a passenger with a disability is unable to keep physical control over their service animal, even if the reason is related to the person’s disability, the airline may deny transport of the service animal in the cabin or may allow the user to travel with a service animal handler, who would be responsible for maintaining control over the animal.
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Check-in. The final rule prohibits airlines from requiring passengers with a disability who are traveling with a service animal to physically check-in at the airport instead of using the online check in process.
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Direct Threats. The final rule allows airlines to refuse transportation to service animals that exhibit aggressive behavior and/or pose a direct threat to the health or safety of others. In so doing, carriers must make an individualized assessment independent of the animal’s breed or type. Such assessments must be made on observable, objective factors such as the service animal’s behavior and health at the time of boarding or check-in.
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Breed Restrictions. Under the final rule, carriers may not refuse to transport a service animal solely based on breed. Carriers must 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.
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Charging for Damage. The final rule allows airlines to charge passengers traveling with service animals for any damage to the aircraft caused by the passenger’s service animal, so long as the airline charges passengers without disabilities for similar repairs or damage.
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Codeshare flights. U.S. carriers continue to be responsible for compliance with ACAA service animal regulations if the U.S. carrier participates in a code-sharing arrangement with a foreign carrier with respect to flights between two foreign points.
The final rule will become effective 30 days after date of publication in the Federal Register. Please let us know if you have any questions.
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 Andy Orr (aorr@eckertsemans.com or 202-659-6625).
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