The Department of Transportation has issued it final rule concerning in-flight rules for animals helping those with disabilities.¹ The bottom line is straightforward. Airlines are only required to permit dogs trained to perform a specific disability related tasks in the cabin of their aircraft. This adopts the same restriction that the Department of Justice has long had in place for Title III public accommodations under the ADA (except that DOT, unlike DOJ, does not recognize miniature horses as service animals). In addition to limiting the kind of animal airlines are required to transport the DOT regulations permit airlines to do some things that DOJ would ordinarily not permit in a Title III context, including:
- Require paperwork in advance that provides details about the animal, and its’ vaccinations and training and warns the person filling out the paperwork that misrepresentations can be punished.
- Limit the size of the dog unless empty seats are available for a larger dog in the same class of service.²
- Require the dog to be leashed or tethered even if its work is not consistent with a leash or tether.
- Require a handler, who may not be the person with a disability, to have the dog under control.
In addition the rules provide specific guidance about excluding dogs that are not under control in the gate or waiting areas. This guidance, which allows the exclusion of animals that misbehave, is similar to the advice I and other lawyers give our Title III clients and is worth looking at because it should be useful in the Title III context. Here is what DOT says:
You may observe the behavior of an animal. A trained service animal will remain under the control of its handler. It does not run freely around an aircraft or an airport gate area, bark or growl repeatedly at other persons or other animals on the aircraft or in the airport gate area, bite, jump on, or cause injury to people, or urinate or defecate in the cabin or gate area. An animal that engages in such disruptive behavior demonstrates that it has not been successfully trained to behave properly in a public setting and carriers are not required to treat it as a service animal without a carrier in the cabin, even if the animal performs an assistive function for a passenger with a disability.
14 CFR §382.73(a)(2).
As you might imagine, the strongest opposition to the new rule came from the emotional support animal community, which is supported largely by organizations that make money promoting the notion that everyone who feels bad should be permitted to take a puppy with them everywhere they go.³ The regulation was favored by industry groups and by groups representing the blind (because the work of guide dogs is often disrupted by untrained animals in close proximity) and those with allergies. Notably absent from the discussion was any consideration of whether emotional support animals are ever required for individuals who are disabled as a result of a psychiatric or mental impairment. Based on information I have received from various practicing and academic mental health professionals it appears there is no scientific evidence that an untrained animal can provide necessary support for an individual whose mental condition rises to the level of a disability.(4) The evidence in favor of emotional support animals for psychiatric conditions seems to be almost entirely anecdotal. It is puzzling that federal regulatory agencies like DOT and HUD have so little interest in the science that is important to their regulatory decisions, preferring instead to simply accept comments from anyone with an axe to grind and make a decision that never addresses the underlying reality of the assertions from the various parties.
Despite the lack of interest in science, the new rules do inject a fresh breath of reason into the discussion of animals for those with disabilities in public places. Disability rights laws and regulations must ultimately balance the tools necessary for those with disabilities to have equal opportunities against the disruption those tools may cause. That requires looking not only at benefits to those with disabilities, but also the opportunities for fraud and the likely cost to businesses and others, including others with disabilities. In the case of emotional support animals the benefits are dubious, the fraud apparent and the harm to others is very real. DOT’s new rules reach an appropriate balance for animals in a public but confined space by rejecting any requirement that emotional support animals be transported by the airlines as anything other than what they are – pets.
¹ The new rules can be found at https://www.transportation.gov/briefing-room/us-department-transportation-announces-final-rule-traveling-air-service-animals.
² This may not be a problem during the current pandemic since flights are often not at capacity.
³ This included U.S. Support Animals, a for profit that claims to offer “official” support animal registration despite the fact that no state or federal agency recognizes such registrations, and whose registration is on the “honor system;” that is, they will issue a registration to anyone who is willing to lie about their pet.
(4) See my earlier blogs – Science v. HUD – science and business are the losers., HUD’s new Guidance on assistance animals will encourage emotional support animal fraud., and HUD gets it wrong again on emotional support animals – two is one too many.