Service Animals On Commercial Air Flights

A recent incident on a U.S. Airways flight involving a disabled veteran and his service dog has brought attention to the issue of service animals on  commercial flights.  The veteran was ejected from the flight because he refused to put his service dog on the floor in front of him.  Instead, he insisted that the dog be allowed to sit on an empty seat next to him.  This is a rare publicized episode of a business practices area of disability discrimination law (service animals on commercial flights) that has received scant attention from the courts.

A few starting points.  First, this is not a issue under the Americans With Disabilities Act (ADA).  Rather, this situation is covered by the federal Air Carrier Access Act (ACAA), which is interpreted by the U.S. Department of Transportation.  Second, although a moot point here because the passenger’s service animal was a dog, beginning March 15, 2011 the U.S. Department of Justice issued new rules under the analogous ADA that restrict the definition of “service animal” to dogs and miniature horses.  If the DOT follows suit in revising the ACAA’s rules, eventually only dogs and miniature horses will be allowed on planes as service animals, assuming there’s even a way to get a miniature horse on an airplane and keep it somewhere in the cabin.

So let’s focus on a common type of service animal, dogs.   The DOT’s rules currently state that a service animal is (i) an animal individually trained and which performs functions to assist a person with a disability; (ii) an animal that has been shown to have the innate ability to assist a person with a disability, e.g., a seizure alert animal; or (iii) an emotional support animal.  Airlines must permit dogs and other service animals used by passengers with a disability to accompany the passengers on their flights.  In addition, such passengers must be allowed to have their service animal accompany them to their assigned seat and remain there as long as the animal does not obstruct the aisle or other areas that must remain unobstructed for safety reasons.  Moreover, disabled passengers must be able to keep their service animals with them unless the animal poses a direct threat to the health or safety of others or presents a significant threat of disruption to the airline service in the cabin.

There are numerous decisions and considerations that are implicated by service animals on an aircraft.  Too many to address in a single post.  The main questions are (1) Is the passenger with the animal disabled?  (2) Is the animal a service animal or a pet?  (3) Can the service animal be transported in the aircraft’s cabin?

You might wonder why this is even an issue since most airlines allow dogs to travel with passengers in the aircraft cabin.  It has to do with the special considerations given to passengers with service dogs.  DOT rules require that the dog fly free, that the disabled passenger receive special seating consideration to accommodate the dog, and that the airline waive some requirements regarding when a dog can’t be transported in the passenger cabin (for example, size or weight restrictions).  Unfortunately, some people who aren’t disabled or who don’t have a true service animal lie in an effort to gain one or more of those special considerations to which they normally wouldn’t be entitled.

So who was right in the dispute between U.S. Airways and the disabled veteran regarding placement of his service dog?  Probably U.S. Airways.  To my knowledge, no federal court has ever issued a decision on whether a disabled passenger must be allowed to keep their service animal on an adjacent unoccupied seat.  But the DOT’s policy guidance concerning service animals in air transportation suggests that airlines can insist that service animals be placed in front of, not on a seat next to, a disabled passenger.  The DOT’s policy guidance specifically references placing service animals on the floor in  front of the passenger.  It also notes that airlines are not required to furnish more than one seat per ticket in order to accommodate a service animal, which implies that if a disabled passenger wants the service animal on the adjacent seat and the airline allows that, the airline can ask the disabled passenger to pay for the second seat.

Please feel free to contact me if you have any questions about service animals under the Americans With Disabilities Act or the Air Carrier Access Act.

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