What birds fly in?

A couple of weeks ago or so, a dog brought on a plane as an emotional support animal mauled a fellow passenger trying to get to his seat. Then, a New York artist tried to bring a peacock on the plane as her emotional support animal. The peacock situation went viral both in the legal blogosphere and on the Internet, including on LinkedIn. That created a lot of misperceptions about the applicable laws, what the laws require, and the reaction of airlines to that law. This blog entry will discuss all of that. As usual, it is divided into categories and they are: the Air Carrier Access Act; thoughts on Air Carrier Access Act regulations; airline reaction United and thoughts; airline reaction Delta and thoughts; what do title I of the ADA and the Fair Housing Act have to say; what about state laws and preemption; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

The Air Carrier Access Act

The situation of the dog and the peacock on the plane have absolutely zero to do with the ADA. The only applicable law is the Air Carrier Access Act and its implementing regulations. Let’s look at some of the key provisions.

1. The Air Carrier Access Act by itself is not much of a law. As we have mentioned previously, it basically just sets forth what a disability is and leaves the rest to regulations issued by the Department of Transportation.
2. 14 C.F.R. §382.25 prevents a carrier from requiring advanced notice that a person with a disability is taking an airplane flight.
3. 14 C.F.R. §382.27(c)(8) allows for 48 hours advance notice for emotional support/psychiatric service animals.
4. 14 C.F.R. §382.27(c)(9) allows for 48 hours advance notice for a service animal if a more than eight hour flight is involved.
5. 14 C.F.R. §382.117(e) says that for emotional support or psychiatric service animals, an airline is not required to accept the animal for transportation in the cabin unless the passenger provides current documentation that is no older than one year from the date of the passenger’s scheduled initial flight on the letterhead of a licensed mental health professional stating that: the passenger has a mental or emotional disability recognized in DSM-IV; the passenger’s emotional support or psychiatric service animal is an accommodation for air travel and/or for activity at the passenger’s destination; the individual providing the assessment is a licensed mental health professional and the passenger is under his or her professional care; and the date and type of the mental health professional’s license and the State or other jurisdiction in which it was issued.
6. 14 C.F.R. 382.117(f) says that airlines are never required, the regs actually uses the word “never,”, to accommodate certain unusual service animals such as, “snakes, other reptiles, ferrets, rodents, and spiders.” With respect to all other animals including unusual or exotic animals presented as service animals- such as miniature horses, pigs, or monkeys-, the airline has to determine whether any factors preclude their traveling in the cabin as service animals. Those factors include whether the animal is too large or heavy to be accommodated in the cabin, whether the animal poses a direct threat to the health or safety of others, whether it would cause a significant disruption of services, and whether it would be prohibited from entering a foreign country that is the flight’s destination. If there are no such factors precluding the animal from traveling in the cabin, the airline has to allow it. Finally, foreign carriers are not required to carry service animals other than dogs.

II

Thoughts on ACAA Regulations

1. What immediately strikes me about these regulations is that the regulations equate psychiatric service animals with emotional support animals. There are also very different documentation requirements for service animals dealing with physical disabilities and for service animals dealing with mental health disabilities. At any rate, to say that emotional support animals and psychiatric service animals are equivalent is false; a point made clear by the ADA DOJ regulations. That has me wondering since the regulations make a not supportable distinction between different types of service dogs, whether this regulation is arbitrary or violates the equal protection clause as incorporated into the due process clause. If that is the case, then the question becomes what equal protection category, as discussed in this blog entry, persons with disabilities fall into with respect to this situation. Even assuming a rational basis category, could there be a rational basis for distinguishing between service dogs for physical disabilities and service dogs for mental health? I do get how a rational basis exists for emotional support animals, but not sure I follow how the distinction is rational with respect to service animals for people with MH conditions. For more analysis, check out this blog entry where I discuss whether the title II and title III DOJ service dog regulations could be subject to challenge.
2. The Department of Transportation regulations do not define what a service animal is. As a preventive matter, adopting the DOJ version of service animal makes sense. That is, as discussed in this blog entry, is the animal engaged in recognition and response?
3. The Department of Transportation regulations doesn’t say what are all of the unusual service animals an airline is never required to accommodate. The regulation specifically uses the phrase, “(example, snakes, other reptiles, ferrets, rodents, and spiders).” So, what else would be on the list? A turkey, a peacock?
4. Same problem for unusual or exotic animals that an airline has to accommodate unless certain factors apply. The regulations uses the term, “(example, miniature horses, pigs, and monkeys).” Again, you are left wondering what else might be considered an unusual or exotic animal presented as a service animal that an airline would have to go through various factors before excluding. Also, miniature horses may be a different kettle of fish since miniature horses under the ADA DOJ regulations get very similar treatment as service animals.
5. Direct threat is a term of art in the ADA world. So, as a matter of preventive law, when analyzing direct threat, it would be wise to go about it as if you were dealing with direct threat under the ADA. See this blog entry for example.

III

Airline Reaction: United Airlines and Thoughts

1. For travel on or after March 1, for passengers traveling with an emotional support animal, passengers will need also to provide a veterinary health form documenting the health and vaccination record for the animal as well as confirming that the animal has appropriate behavioral training. Here is what is interesting, in the box on United’s website talking about the changes effective March 1, 2018, the term used by United is, “emotional support animal.” However, in the body of the document itself, the airline uses the term, “emotional support and psychiatric assist animals.” Therefore, you are left wondering whether United Airlines is engaged in the false equivalency of service dogs and emotional support animals, which as described above is wrong but currently permitted by DOT regulations. Paragraphs III2,3 below represent a continuation of existing United policy and are not changes.
2. With respect to submitting and notifying United Airlines that you are traveling with an emotional support or psychiatric assist animal, United does allow for calling an 800 number or the United customer contact center and asking to be connected to the accessibility desk. With respect to documentation, there is a link to click on to get the required documentation and that documentation can either be emailed or faxed. United seems to be allowing for multiple different ways for persons with disabilities to do what they have to do with respect to being able to fly with their service animals; a step I highly recommend.
3. United only recognizes trained and certified service animals. That is a bit odd as service animals are not certified in this country. They certainly go through extensive training and can receive a certificate at the end of that training, but that isn’t the same thing as certification. Service animals can also be trained by anybody.
4. For therapy animals, standard pet-related regulations and restrictions apply.

IV

Airline Reaction: Delta Airlines and Thoughts

1. For travel with a trained service animal or an emotional support/psychiatric service animal, Delta requires certain forms to be downloaded and uploaded to their website. They better make sure that this whole process is accessible to persons with disabilities. Otherwise, they are going to be dealing with a title III of the ADA lawsuit.
2. If you run into trouble filling out the forms, Delta does have an accessibility assistance line, but the process is still entirely form driven.
3. Service dogs or support animals in training are allowed if the service or support animal in training is traveling with a professional trainer on route to the owner or the animal in training is already a trained service or support animal traveling with a certified trainer for additional training
4. With respect to the sky club, the policy for service and support animals is the same as the policy for those animals on a Delta aircraft.
5. Delta is making the policy for service and support animals with respect to the sky clubs the same as for dealing with animals on the aircraft. That is interesting as the sky club at the airport would be governed by title III of the ADA and not the Air Carrier Access Act. In a way, it could be argued that Delta’s policy while not called for by the applicable laws, is a greater benefit to persons with disabilities than might otherwise be the case because by making the policy the same for aircraft and the sky club, a greater number of passengers can use the sky club.

V

What Does Title I of the ADA and the FHA Have to Say about All of This?

1. As mentioned here, when it comes to employment, the EEOC is silent on service dogs/emotional support animals. Check out this blog entry for thoughts on how to handle that situation.
2. With respect to the Fair Housing Act, check out this blog entry.

VI

What about State Laws and Preemption?

1. States have their own approaches for dealing with service dogs. We discussed the Texas approach
2. We discussed here just how far ACAA goes with respect to preempting state laws and remedies.

VII

Takeaways:

1. The DOT regulations treat service animal for people with physical disabilities differently than service animals for people with MH issues, doesn’t make a lot of sense to me. It wouldn’t surprise me to see a challenge filed saying that those regulations allowing for such a distinction are arbitrary and/or violate the equal protection clause through the due process clause.
2. As we have discussed numerous times in this blog entry, the Internet is frequently not accessible to people with disabilities. Airlines would do well to have a multiple variety of ways to allow persons with disabilities to go through the process of being able to bring their animal on the plane.
3. Different rules from the Air Carrier Access Act apply to airline sky clubs located at the airport as sky clubs are covered by title III of the ADA. Since the ADA is a floor, there isn’t any problem with an airline saying they will go with the same rules as the Air Carrier Access Act in the sky clubs, but the airlines aren’t required to do so, though that approach would raise practical problems.
4. The Air Carrier Access Act regulations leave a lot of room for interpretation when it comes to certain unusual service animals that are never allowed and certain unusual or exotic animal that are allowed absent any factors.
5. The Air Carrier Access Act also leaves a lot of room for interpretation with respect to the certain unusual or exotic animals that are permitted absent factors precluding the animal from traveling in the cabin. That would seem to suggest that if any factors do allow the animal to travel in the cabin, the animal must be allowed even if other factors wouldn’t allow for the animal. Of course, the “no such factors,” language could also be read in the opposite. That is, an animal is not allowed to fly on the plane if any of the factors, whatever they may be since the list isn’t exclusive, prohibiting it does apply. I don’t envy airline attorneys trying to figure this one out.
6. I have been surprised at the lack of empathy on LinkedIn, with respect to emotional support animals and people with disabilities on airplanes. Remember, empathy is always a good thing. This is not to say that fraud is not occurring with respect to emotional support animals, it most certainly is. Even so, for people with disabilities who truly need emotional support animals, they can be of great help.