Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Acclaimed actor Samuel L. Jackson put it best when he exclaimed in a 2006 film: “Enough is enough. I have had it with these [expletive] snakes on this [same expletive] plane.” With its final rule under the Air Carrier Access Act, entitled “Traveling by Air with Service Animals,” the Department of Transportation finally obliged Mr. Jackson’s character by tightening the leash on passengers seeking to travel with animals.1
For the past few years, there have been innumerable tales (or tails) about emotional support animals, such as peacocks, pigs, monkeys and turtles getting a free ride with their owners on commercial flights. The days of the flying petting zoo, however, are ending. Soon, only bona fide service animals will fly free, and emotional support animals will join the “no fly” list. This means that proud emotional support birds, like the late Dexter the peacock, will no longer enjoy the right to fly the friendly skies with their human handler.
The Department of Transportation unleashed its final rule, which could become effective as soon as January 2021.2 The agency sought and received extensive input from the airline industry, unions, service animal organizations, passenger rights advocates, and disability rights groups. The rule marks a significant change to the Department of Transportation’s interpretation of the Air Carrier Access Act. Currently, passengers have a right to bring almost any animal (with some exceptions) as an “emotional support animal,” a definition that does not require specialized training. The new rule, however, provides passengers with the right to bring actual service animals only.
The lengthy published discussion and tightened rule provide that:
- Passengers may bring service animals on flights. A “service animal” will now be defined as a dog individually trained to perform tasks to aid an individual with a disability. The definition includes psychiatric service animals. This places the Air Carrier Access Act standards more closely in line with those under Title III of the Americans With Disabilities Act (ADA) governing service animals in places of public accommodation, such as stores, restaurants, and places of lodging.3
- Travelers will be limited to two service dogs—and airlines can require that they either fit on the passengers’ laps or within the handler’s foot space in front of them. Further, airlines can limit the number of service animals on any given flight.
- Air carriers may seek documentation on an approved form attesting to the service dog’s health, training and behavior. So, unlike the ADA, which bars places of public accommodation from demanding written certification as to the service animal’s bona fides (or bona fidos), the new rule allows an airline to require that passengers provide a completed hard or electronic copy of the Department’s approved Service Animal Air Transportation Form. Airlines may also require that the passenger provide the completed form up to 48 hours before departure time, unless the passenger is purchasing a ticket closer to departure.
- Passengers traveling with service animals will also be able to use electronic check-in procedures rather than having to wait in line at the check-in desk.
- Airlines may still exclude any dog exhibiting aggressive behavior or posing a threat to the health or safety of others—but may not discriminate based solely on breed.
- Passengers no longer have the right to bring their emotional support animal, whether it is a dog or other species. Emotional support animals may now be treated in the same manner as pets if allowed to fly with the passenger. This marks the most significant change from past requirements under the Air Carrier Access Act.
This new rule provides welcome relief for many members of the traveling public, including those who, due to a medical condition, must fly with their service dogs. There are sad instances of untrained emotional support animals attacking true service animals. Further, many members of the traveling public (and air carriers) wanted airlines to curb passengers’ abusing the system by flying with so-called emotional support animals that are anything but—and not having to pay a pet fee. The stories about dogfights breaking out in the center aisle, cabin crew being bitten or animals defecating within the passenger cabin are many. This rule will allow cabin crew to focus more on unruly passengers—another significant challenge exacerbated by the pandemic.
How Does This Affect the Workplace?
Unless employees are attempting to travel with emotional support animals, or the workplace is a plane cabin, this new rule has no direct effect on the workplace. That said, before the pandemic, employee requests for assistance (service and support) animals in the workplace as an accommodation under the ADA had been rising precipitously. Given the pandemic’s toll on the physical and mental health of the country, these requests can only be expected to rise as more people return to work. Employers are dogged with the challenge of separating and vetting legitimate requests by employees truly in need of an accommodation from cynical attempts by employees to self-diagnose themselves with bogus online “certifications” for support animals or simply to bring their pets to work.
In cooperation with the country’s leading service animal organization, Canine Companions for Independence, Littler produced a half-hour video on the subject entitled “The Deal With Dogs: Unleashing Workplace Solutions to Service and Assistance Animals.” The video compares and contrasts obligations in places of public accommodation (under Title III of the ADA) from workplace accommodation situations (under Title I of the ADA) with illustrative vignettes and a panel discussion featuring service dog teams from Canine Companions. Regrettably, Mr. Jackson from “Snakes on a Plane,” does not appear in the video.
Enhancing Travel Safety
The Department of Transportation’s new rule represents a responsible and positive step to protect the safety of passengers and crew, and also safeguard passengers with true service animals. The hope is that eliminating untrained dogs, parrots, and aardvarks from the passenger cabin will bring a sense of tranquility back to the friendly skies, allowing travelers finally to “sit back, relax, and enjoy the flight.”
The Department of Transportation has yet to take a position, however, on whether dogs—or their human handlers or other passengers—must wear a face mask to protect themselves and others during the Covid-19 pandemic.
1 Even prior to its new rule, the Department of Transportation took the position that “Airlines are never required to accept snakes, reptiles, ferrets, rodents, sugar gliders, and spiders.” The temptation to reference Mr. Jackson’s film, however, was too great.
3 “Service Animals” under ADA Titles II and III are limited to dogs and miniature horses. The proposed airline regulations, however, do not include miniature horses.