In recent years, countless headlines report a crescendo of extraordinary animals flying on airplanes. Gizmo the marmoset holds a spot on Frontier’s no-fly list after his owner failed to mention the monkey would be flying with him to Las Vegas—he now flies Southwest. Famously, Dexter the peacock, tried to fly across the country before United stopped his boarding attempts. Miniature ponies with proper training and documentation may fly American Airlines.
But if you have not taken a selfie or posted a picture with a flying animal celebrity, your time may be running out. Why? In part, because pigs must not be allowed to fly, lest the consequences.
More seriously, the Department of Transportation (DOT) recently proposed regulations for service animals on airplanes. The DOT started rulemaking because Federal Aviation Administration Reauthorization Act of 2018 mandated a harmonization of service-animal standards, including rulemaking to define the term “service animal” for purposes of air transportation, and to take reasonable measures to ensure pets are not claimed as service animals.
The proposed rules would define a service animal, under Air Carrier Access Act regulations in 14 CFR Part 382. The proposed definition reads: “a dog 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.” This definition aligns with the Department of Justice definition under title II and title III of the Americans with Disabilities Act regulations 28 C.F.R. §§104, 36.104.
For people with disabilities, the harmonization would allow use of the two-inquiry paradigm of the DOJ’s title II and title III regulations, where airlines could only make two inquiries to determine whether an animal qualifies as a service animal:
- Is the animal required to accompany the passenger because of a disability?
- What work or tasks has the animal been trained to perform?
In general, the proposed definition limits the species that qualify as service animals to dogs and excludes emotional support animals, comfort animals, companionship animals, and service animals in training from consideration as “service animals.” Airlines would treat emotional support animals as pets rather than service animals, but airlines could choose to continue to recognize emotional support animals and transport them for free pursuant to its established policy. For emotional support animal owners who have a mental health disability, they could train their dogs to do work or perform a task to assist them with their disability, thereby transforming the animal from an emotional support animal to a psychiatric service animal. The proposed rule treats psychiatric service animals the same as other service animals trained to do work or perform tasks.
With respect to documentation that the animal is a service animal, the proposed rule would require individuals traveling with a service animal to provide to the airlines standardized documentation of the service animal’s behavior, training, and health. It would also allow airlines to request a standard form attesting that the animal would not need to relieve itself or can relieve itself in a way that does not create a health or sanitation risk if the service animal will be on a flight segment longer than eight hours. Lastly, it would make that form the only documentation an airline could require of a passenger traveling with a service animal.
The DOT continues to seek comments on the proposed definition and documentation requirements and a few other proposed regulations. It also prescribes no breed restrictions, the available space for service animals to be within the passenger’s foot space or the passenger’s lap, handler control and restraint of service animals while in the passenger cabin, online access to standardized forms, and written documentation for determinations to deny transport.
The new regulations try to preserve the rights of passengers with disabilities that fly with their service animals and reduce the animal-related complaints from other passengers. Emotional support animals will most likely have to rein in their flying ambitions, but it’s probably not the last we will see about animals frolicking in unexpected places. People love their animals; social media loves those animals; and I, for one, doubt my cat will stop posting his escapades on Facebook.
Jonathan Ko. Jonathan is the current president of Washington Attorneys with Disabilities Association. He practices patent and trademark law at his firm, LinKo PLLC
