Jess Harrell
In recent years, there has been a rise in emotional support animals (“ESAs”) throughout the United States.[1] Unlike service animals, which are trained to perform specific tasks for disabled individuals,[2] ESAs provide companionship, relieve loneliness, and help with mental disabilities such as depression, anxiety, and phobias.[3] However, they are not individually trained to perform specific tasks.[4] Until recently, the Department of Transportation’s (“DOT”) Air Carrier Access Act (“ACAA”) regulation protected disabled passengers traveling by air with ESAs if the passenger provided documentation from a mental health professional.[5] However, due to increased incidents with untrained ESAs and a congressional mandate, the DOT has issued a final rule to amend the ACAA.[6]
The most substantial and controversial aspect of the DOT’s final rule is what it includes and excludes from its official 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.”[7] However, it then goes on to explicitly state that “emotional support animals . . . are not service animals.”[8] Thus, while the final rule requires that air carriers allow a service animal to accompany a passenger with a disability,[9] it allows air carriers to recognize ESAs as pets.[10] Alaska Airlines,[11] American Airlines,[12] Delta Airlines,[13] Frontier Airlines,[14] JetBlue,[15] Spirit Airlines,[16] Southwest Airlines,[17] and United Airlines[18] have all either changed their policies to reflect the DOT’s new definition of a service animal (therefore categorizing ESAs as pets) or are in the process of doing so.
With such substantial changes, it is no surprise that the DOT’s final rule has been met with vehement backlash. Of the fifteen thousand comments received by the DOT after its proposed changes to the ACAA, six thousand commenters opposed the exclusion of ESAs from the definition of service animals.[19] The main concern amongst those in opposition is that the final rule will make it more difficult for those with disabilities to travel.[20] If air carriers categorize ESAs as pets, passengers wanting to travel with small ESAs could be required to pay a pet fee of up to $175 each way to bring their animals into the cabin with them.[21] However, a commenter from the Paralyzed Veteran’s for America noted that “people with disabilities are disproportionately low income and these fees would likely make it very difficult for [ESA] users to travel.”[22] Additionally, if categorized as pets, passengers wanting to travel with large ESAs will be required to either risk their animal’s health and safety and check them into cargo hold or leave them at home.[23] However, many individuals with disabilities noted that they are unable to fly without their ESA or unable to function without their ESA at their destination.[24] Thus, as the executive director of the National Disability Rights Network argued, the final rule “will only serve to exacerbate existing inequities for people with disabilities participating in air travel.”[25]
Nonetheless, the reality of this final rule may not be as dire as it seems due to the DOT’s treatment of psychiatric service animals. In the final rule, the DOT includes “psychiatric” disabilities in its definition of service animals.[26] Thus, the final rule treats psychiatric service animals the same as other service animals.[27] Moreover, it removed the previous regulation’s provision that allowed airlines to require psychiatric service animal users provide a letter from a licensed mental health professional attesting to the their need for the animal.[28] Instead, with the final rule, psychiatric service animal users need only fill out the DOT service animal form, in which they attest that their animal is trained to perform tasks to assist them with their disability.[29] However, the DOT is aware that those with ESAs may fabricate their animal’s training on the DOT form (though it is a federal crime to do so)[30] and has made it abundantly clear that it will “monitor whether unscrupulous individuals are attempting to pass of their pets as service animals for non-apparent disabilities, including . . . psychiatric disabilities.”[31]
Ultimately, the DOT’s final rule is not the death-knell it seems to be for those in need of ESAs. Though service animals must be trained, the DOT noted that “service animal users are free to train their own dogs to perform a task or function for them.”[32] Thus, if a passenger in need of an ESA is willing to put the time and effort into training their animal, this rule will not ban their animal from accompanying them on the cabin. Instead, it may be fairly simple and cost-efficient for those with ESAs to transform their untrained, banned ESAs into trained, flight-worthy service animals.
[1] See Carolina J. Cordova, Preventing the Delegitimization of Service Animals: A Proposal to Keep Service Animal Law from Going to the Dogs, 23 Chap. L. Rev. 247, 251 (2020).
[2] Id. at 250.
[3] Jake Butwin, Emotional Support Animals Are More than Just Pets: It Is Time for the Department of Justice to Align Its Emotional Support Animal Policies with Other Anti-Discrimination Laws, 47 Fordham Urb. L.J. 195, 202 (2019).
[4] Id.
[5] 14 C.F.R. § 382.117(e) (2009); see also Butwin, supra note 3, at 214 (“[T]he Air Carrier Access Act . . . offers protection to disabled passengers traveling with emotional support animals.”).
[6] Dep’t of Transp., Supplementary Information for Final Rule Traveling by Air with Service Animals 4–5 (2020), https://www.transportation.gov/sites/dot.gov/files/2020-12/Final%20Service%20Animal%20Rule.pdf.
[7] 14 C.F.R. § 382.3 (2021).
[8] Id.
[9] 14 C.F.R. § 382.72 (2021).
[10] Dep’t of Transp., supra note 6, at 2.
[11] See Alaska Airlines Announces Revisions to Its Service Animal Policy, Alaska Airlines: Newsroom (Dec. 29, 2020), https://newsroom.alaskaair.com/2020-12-29-Alaska-Airlines-announces-revisions-to-its-service-animal-policy.
[12] See American Airlines Announces Changes to Policies for Travel with Emotional Support Animals, Service Animals, Newsroom – Am. Airlines (Jan. 5, 2021, 9:00 AM), http://news.aa.com/news/news-details/2021/American-Airlines-Announces-Changes-to-Policies-for-Travel-with-Emotional-Support-Animals-Service-Animals-OPS-POL-01/.
[13] See Delta to No Longer Accept Emotional Support Animals; DOT Documentation Required for Trained Service Dogs, Delta News Hub (Jan. 7, 2021, 2:00 PM), https://news.delta.com/delta-no-longer-accept-emotional-support-animals-and-require-dot-documentation-trained-service-dogs.
[14] See Frontier Airlines Modifies Service Animal Policy, Newsroom – Frontier Airlines (Jan. 11, 2021), https://news.flyfrontier.com/frontier-airlines-modifies-service-animal-policy/.
[15] See Traveling with Service Animals, JetBlue, https://www.jetblue.com/at-the-airport/accessibility-assistance/service-dogs-animals (last visited Jan. 21, 2021).
[16] See Traveling with a Service Animal, Psychiatric Animal, or Emotional Support Animal, Spirit Airlines, https://customersupport.spirit.com/en-US/category/article/KA-01492 (last visited Jan. 21, 2021).
[17] See Lori Aratani, Airlines Warn Travelers: Emotional Support Animals Will No Longer Be Permitted, Wash. Post (Jan. 5, 2021, 5:12 PM), https://www.washingtonpost.com/local/trafficandcommuting/emotional-support-animals/2021/01/05/ab38887e-4f6f-11eb-b96e-0e54447b23a1_story.html.
[18] See Service Animals, United, https://www.united.com/ual/en/us/fly/travel/special-needs/disabilities/assistance-animals.html (last visited Jan. 12, 2021).
[19] Dep’t of Transp., supra note 6, at 16.
[20] See id. at 16–18.
[21] See David Schaper, No More Emotional Support Peacocks as Feds Crack Down On Service Animals on Planes, NPR (Dec. 8, 2020, 11:44 AM), https://www.npr.org/2020/12/08/944128033/no-more-emotional-support-peacocks-as-feds-crack-down-on-service-animals-on-plan.
[22] Dep’t of Transp., supra note 6, at 17.
[23] See Rachel Tillman, New DOT Rules Crack Down on Emotional Support Animals on Flights, Spectrum News 1 (Dec. 2, 2020, 12:10 PM), https://spectrumnews1.com/ky/lexington/news/2020/12/02/dot-rules-crack-down-on-emotional-support-animals.
[24] Dep’t of Transp., supra note 6, at 17.
[25] Michelle Diament, Restrictions Set to Take Effect for Service Animals on Planes, Disability Scoop (Dec. 4, 2020), https://www.disabilityscoop.com/2020/12/04/restrictions-set-to-take-effect-for-service-animals-on-planes/29107/.
[26] 14 C.F.R. § 382.3 (2021).
[27] Dep’t of Transp., supra note 6, at 7.
[28] Id. at 23, 122.
[29] Id. at 62.
[30] Id.
[31] Id. at 27.
[32] Id. at 23.
