Legal E-Bulletin - February 2020

Department of Transportation Issues Final Statement of Enforcement Priorities Regarding Service Animals on Flights and Proposes Significant Regulation Changes

Diego Demaya, J.D.

U.S. DOT Narrows the Scope of Service Animal Accommodations

On August 8, 2019, the U.S. Department of Transportation (DOT) issued a Final Statement Of Enforcement Priorities Regarding Service Animals. The DOT regulates the transportation of service animals under the Air Carrier Access Act (ACAA). The statement discusses topics such as species/breed restrictions, documentation of service animals, advance notice, and containment of service animals in the cabin. Additionally, on January 22, 2020 the U.S. Department of Transportation announced that it is seeking public comment on proposed amendments to its Air Carrier Access Act (ACAA) regulation on service animals accompanying passengers in air travel. See, Notice of Proposed Rulemaking - Traveling by Air with Service Animals (NPRM).

Notably, the DOT proposes a number of service animal provisions in its rulemaking that differ significantly from the current DOT regulation and provides the public with 60 days to comment on proposed changes. The DOT says the NPRM is intended to ensure a safe and accessible air transportation system and addresses service animal related concerns raised by individuals with disabilities, airlines, flight attendants, airports, other aviation transportation stakeholders, and other members of the public. The Department stated it wants to ensure that individuals with disabilities can continue using their service animals while also reducing the likelihood that passengers wishing to travel with their pets on aircraft will be able to falsely claim their pets are service animals. Public comment is expected until April 6, 2020 and late-filed comments will be considered to the extent practicable.


Current DOT regulations generally require that airlines allow passengers to travel with a wide range of animals in the cabin on the basis that the animals are service animals or emotional support animals. It is estimated that in 2018 U.S. airlines transported approximately one million such animals in the passenger cabin. Animals on board included ducks, turkeys, pigs, and iguanas. This has given rise to problems from presumably untrained animals attacking, biting, and scratching passengers, airline employees, and other animals – including incidents of animals urinating and defecating in the airport terminal and in the aircraft.

While the Final Statement Of Enforcement Priorities Regarding the transportation of service animals is not a regulation, it does propose a significant policy shift in regard to how the DOT will enforce current law while moving forward with the proposal for new regulation. Here are the most significant DOT proposed changes:

  1. Airlines Will Only Be Required to Accept Dogs as Service Animals. DOT proposes to define a service animal as 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. DOT is essentially likening its definition to the U.S. Department of Justice (DOJ) definition of “service animal” pursuant to regulations enforcing the Americans with Disabilities Act (ADA). See, e.g., 28 C.F.R. § 36.104 - Definitions).

    By contrast, current DOT regulations require airlines to accept other species, including cats, miniature horses, pigs, and capuchin monkeys as service animals. See, 14 C.F.R. § 382.117 Must carriers permit passengers with a disability to travel with service animals? While the DOT Final Statement on Priorities states that it will continue to enforce the current regulation, it is expected to begin its policy shift toward limiting service animals to dogs only – especially in view of incidents involving other types of animals and airline company policy changes.
  2. Allow airlines to treat emotional support animals as pets rather than service animals. Airlines Will Not Be Required to Accept Emotional Support or Comfort Animals as Service Animals for purposes of air travel in the passenger cabin. Airlines would be permitted to treat emotional support animals as pets because they are not trained to do work or perform a task for the benefit of an individual with a disability as stated in the NPRM definition. Recall that under the ADA a “pet” does not have disability-related legal protection to enter public places. Moreover, the DOT stated that while the current DOT service animal regulation permits airlines to require documentation from a licensed mental health professional for the carriage of emotional support animals, the advent of online entities that may be guaranteeing the required documentation for a fee has made it difficult for airlines to determine whether passengers traveling with animals are traveling with their pets or with legitimate emotional support animals.
  3. Service Animal Documentation. As a significant change airlines will be permitted to require passengers with a disability accompanied with a service animal to complete and submit to the airline forms developed by DOT as a condition of transportation. Airline developed forms will not be permissible. DOT forms include:

    • DOT Service Animal Air Transportation Health Form, to be completed by a veterinarian, in order to certify the animal’s good health;
    • DOT Service Animal Air Transportation Behavior and Training Attestation Form, to be completed by the service animal handler, in order to attest to the animal’s good behavior; and
    • DOT Service Animal Relief Attestation, to be completed by the service animal handler, when traveling with a service animal on a flight eight hours or longer in order to verify that the animal has the ability to either not relieve itself, or can relieve itself in a sanitary manner.

    The DOT forms will warn that it would be a federal crime for a service animal handler to make false statements or representations on these forms to secure disability accommodations.
  4. Qualification as a Service Animal. To determine whether an animal qualifies as a “service animal,” airline staff will be permitted to inquire: a) whether the animal is required to accompany the passenger because of a disability; and b) what work or task the animal has been trained to perform. However, the airline may neither inquire about the nature of the passenger’s disability nor ask the passenger to have the animal demonstrate the work or tasks it was trained to perform. Again, DOT is following the ADA service animal rule. Supra.
  5. Consider a psychiatric service animal to be a service animal and require the same training and treatment of psychiatric service animals as other service animals. Psychiatric service dogs would continue to qualify as service animals on the basis that they are trained to do work or perform tasks; e.g., a dog trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact. However, if the dog's presence provides merely comfort, it would not be considered a service animal.
  6. Allow airlines to require passengers with a disability traveling with a service animal to check-in at the airport one hour prior to the travel time required for the general public to ensure sufficient time to process documentation and observe the service animal. This condition would be permissible so long as the airline similarly requires advance check-in for passengers traveling with their pets in the cabin. Notably, airlines would have to designate a location in the airport for these passengers to check-in promptly with a trained agent. This effectively changes the current regulation requiring passengers traveling with an ESA or PSA to check in before regular time for flights lasting 8 hours or longer. Airlines would be required to promptly check-in passengers with service animals who are subject to an advanced check-in process;
  7. Allow airlines to limit the number of service animals traveling with a single passenger with a disability to only two (2) service animals. The Final Statement provides that DOT will continue to focus on ensuring that airlines are not restricting passengers from traveling Just because they might need to travel with more than one service animal. The DOT clarified that the current regulation (part 382) plainly does not allow airlines to deny transport to a service animal accompanying a passenger with a disability because of a limit on the total number of service animals that can be on any flight. Recall that the current regulation does not prohibit a passenger from traveling with more than one service animal.
  8. Allow airlines to require a service animal to fit within its handler’s foot space on the aircraft. Here DOT proposes to allow airlines to limit service animals based on whether the animal can fit onto the service animal handler’s lap or foot space. Airlines could reject service animals that are too large to fit in these spaces. In cases where the service animal is too large to fit in the passenger’s foot space or on the passenger’s lap, DOT proposes to require airlines to: (i) seat the passenger with a service animal next to an empty seat within the same class of service, if available; (ii) provide the passenger with the option to transport the animal in the cargo hold for free; or (iii) transport the passenger on a later flight with more room -- if available.
  9. Continue to allow airlines to require that service animals be harnessed, leashed, tethered, or otherwise under the control of its handler. DOT will continue to permit airlines to require that service animals be harnessed, leashed, tethered, or otherwise under the control of the handler at all times in the airport and on the aircraft -- unless the device interferes with the work of the service animal, or the passenger’s disability prevents use of these devices. Moreover, the new regulation will address when the user of a service animal may be charged for damage caused by the service animal.
  10. Continue to allow airlines to refuse transportation to service animals that exhibit aggressive behavior and that pose a direct threat to the health or safety of others. In determining whether a service animal poses a direct threat, an airline must make an individualized assessment based on reasonable judgments that relies on the best available objective evidence to ascertain the nature, duration, and severity of the risk; the probability that the potential injury will occur; and whether reasonable modifications will mitigate the risk. This is the same “direct threat” standard contained in Titles II and III of the ADA. See, e.g., 28 C.F.R. § 36.208.
  11. Continue to prohibit airlines from refusing to transport a service animal solely on the basis of breed. While DOT proposes to continue prohibiting airlines from imposing breed and other categorical restrictions on service animals, it does seek comment about the unique environment of a crowded airplane cabin in flight that would justify permitting airlines to prohibit pit bulls and other particular breeds from traveling on flights. Conversely, the ADA obligates localities where breed restrictions are enforced to make policy modifications on a case-by-case basis.

Submitting Comment to the NPRM

DOT is requesting comments on the proposed rule by April 6, 2020.

The public may file comments identified by docket # DOT–OST–2018–0068. Instructions where to file comments are stated in the notice.

The Southwest ADA Center is a program of ILRU (Independent Living Research Utilization), at TIRR Memorial Hermann in Houston, Texas. The Center is funded by a grant (90DP0092) from the National Institute on Disability, Independent Living, and Rehabilitation Research. NIDILRR is a Center within the Administration for Community Living (ACL), Department of Health and Human Services (HHS). The contents of this e-bulletin do not necessarily represent the policy of NIDILRR, ACL, HHS, and you should not assume endorsement by the Federal Government.