On August 8, 2019, the U.S. Department of Transportation’s (DOT’s) Office of Aviation Enforcement and Proceedings (Enforcement Office) issued a Final Statement of Enforcement Priorities Regarding Service Animals (Final Statement). This action apprises the public of DOT’s “enforcement focus with respect to the transportation of service animals in the cabin of aircraft” which DOT regulates under the Air Carrier Access Act (ACCA). Last year, DOT initiated an advanced notice of proposed rulemaking under the ACCA to respond to concerns expressed by individuals with disabilities, airlines, flight attendants and other stakeholders about the need for a change in DOT’s service animal requirements. Recognizing that the rulemaking process can be lengthy, DOT also issued an Interim Statement of Enforcement Priorities to give notice of how the statute would be enforced during the rulemaking process. While “not legally binding in its own right,” the August 8 Final Statement provides the public with “greater transparency” with respect to the interpretation and enforcement of existing requirements by the Enforcement Office, based upon the comments that the agency has received from the public.
Under the Americans with Disabilities Act, service animals are limited to dogs. However, the ACCA, the statute that governs access by the disabled to public air transportation, has a much broader scope on this issue. ACCA covers the animals traditionally regarded as service animals — dogs, cats and miniature horses — but also essentially any other animal that is individually trained or able to provide emotional or psychiatric support — so-called emotional support animals (ESA’s) or psychiatric support animals (PSA’s).
The Final Statement provides enforcement guidance in ten areas that the public comments indicated were raising issues among the various stakeholders:
♦ Species and Breed Restrictions. One airline had banned pit bulls, which the Enforcement Office found contrary to ACCA. While there can be categorical restrictions by the airlines on snakes, other reptiles, ferrets, rodents and spiders, there can be no categorical bans on other animals. Whether a particular dog poses a direct threat to safety or health will depend on an assessment of that animal, not its breed. So, presumably, airlines cannot ban the flight of pit bulls, Rottweilers, Dobermans and the like based solely on breed.
♦ Number Restrictions. An airline cannot prevent an individual passenger from traveling with one ESA and a total of three service animals, if needed. Airlines cannot impose categorical restrictions on the number of service animals on a single flight. If ten passengers need service animals and meet the criteria, then their animals will all fly. The line where this would become an unwieldy “Noah’s Ark” scenario is unclear.
♦ Weight Restrictions. One airline imposed a 65-pound weight limit which the Enforcement Office found inconsistent with ACCA. Categorical weight restrictions are not allowed; weight must be assessed on a case-by-case basis, including the type of aircraft. So, in theory, a Great Dane could fly if other requirements were met.
♦ Age Restrictions. The Enforcement Office had no issues with airline rules excluding animals too young to have been trained to behave in public.
♦ Flight-Length Restrictions. Airlines cannot categorically restrict service animals on flights lasting 8 hours or more, but for such flights they can request 48 hours’ notice, early check-in and documentation that the animal’s need for bodily relief can be handled in a way that does not create a sanitation issue on a flight.
♦ Proof of Service Animal Status. Airlines are still permitted to ask limited questions to determine the passenger’s need for the animal, even if the animal is wearing a service animal vest or similar apparel.
♦ Documentation Requirements. Airlines can continue to ask for documentation related to any service animal’s vaccination, training or behavior as long as it is reasonable to believe that the documentation would assist in determining whether the animal is a direct threat to safety or health. While airlines can encourage customers to use the airline’s own form, they cannot require it. Any documentation from a mental health professional that meets the legal criteria will suffice.
♦ Lobby Verification. Airlines will not apparently risk enforcement action by requiring passengers to present service animal documentation for ESA’s and PSA’s in the airport lobby, as opposed to the gate area. However, airlines cannot require presentation of such documentation for passengers with traditional service animals any earlier than in the gate area.
♦ Advance Notice/Check- In. ESA/PSA users can be required to give 48 hours’ notice and to appear for lobby documentation check-in one hour prior to the time for the general public to check in. However, these notice and check-in requirements cannot be imposed on travelers with traditional service animals or other non-ESA/PSA’s.
♦ Containment. Requiring passengers to comply with containment methods that meet the ADA (e.g., a harness) will generally be deemed permissible. Other situations will be assessed case-by-case on the basis of factors such as the size of the animal and the right of other passengers to enjoy their own foot space.
The Final Statement took effect immediately, but the Enforcement Office has indicated that it will refrain from taking any enforcement action for a period of up to 30 days in order to give airlines an opportunity to begin the process of compliance. DOT has indicated that it intends to issue a notice of proposed rulemaking on the transportation of service animals by air after reviewing and considering the comments that were submitted in response to the 2018 advance notice of proposed rulemaking.