DOT Proposal Restricts Service Animals on Planes: So Long to the Emotional Support Peacock?

On January 22, 2020, the U.S. Department of Transportation (DOT) proposed new amendments to the Air Carrier Access Act (ACAA) regulations. These amendments would further restrict the type and use of service animals on airplanes.

Among the changes noted below, the new rules would require passengers to pay the pet fees that airlines charge for bringing “emotional support” animals on board. The amendments were proposed in light of: (1) the increasing number of service animal-related complaints in air travel, (2) the inconsistency between the ACAA’s service animal regulations and the service animal regulations under the Americans with Disabilities Act (ADA), (3) passengers’ well-publicized attempts to fly with unusual species of service animals (e.g., peacocks and pigs), (4) the large number of potentially false claims that pets are service animals, and (5) the increase in misbehavior of purported service animals.

It appears that many of the issues that airlines experience with service animal air travel focus on two main provisions of the current ACAA regulations. First, the ACAA currently requires airlines to recognize emotional support animals as service animals. Second, the ACAA requires airlines to recognize “service animals” regardless of species with exceptions for certain unusual species of potential service animals (e.g., spiders and rodents). The amendments seek to resolve these issues by no longer considering an emotional support animal to be a “service animal” and limiting service animals to dogs.

Some of the other highlights of the proposed new amendments include provisions that would:

• require the DOT to consider treating psychiatric service animals as service animals and require the same training and treatment of psychiatric service animals as other service animals
• permit airlines to require passengers to provide forms attesting to a service animal’s good behavior, that it is in good health, and that it has the ability to either not relieve itself on a long flight or do so in a sanitary manner
• permit airlines to require a service animal to fit within its handler’s foot space on the aircraft
• permit airlines to limit the number of service animals to two per passenger with a disability
• require passengers using emotional support animals to pay for their carriage as pets

Takeaways

Presently, the ADA prohibits a place of public accommodation from requiring, or even requesting, any documentation relating to the legitimacy or behavior of a service animal. Thus, the proposed DOT amendments, if finalized, will not directly impact service animals in the public accommodation context. However, with the increased incidence of service animal fraud in places of public accommodation, we may begin to see calls to tighten regulations, especially with respect to documentation.