I’ve posted several times, here, here, here, and here regarding the dilemma of service dogs and emotional support animals (“ESA”).

I was interested to see that Delta has recently tightened up its rules for service dogs and ESAs who fly on its planes.

Delta, as of March 1, 2018, will require the following:

• All customers traveling with a service or support animal must show proof of health or vaccinations of the animal 48 hours in advance of the flight.
• In addition to the current requirement of a letter prepared and signed by a doctor or licensed mental health professional, those with psychiatric service animals and emotional support animals will also need to provide a signed document confirming that their animal can behave properly (not aggressive and won’t pee on the plane).

Delta has picked up on what many airline passengers these days have suspected and that is that many passengers flying with ESAs are gaming the system to fly animals not normally allowed on-board (including turkeys, pigs, flying sugar gliders, etc.) or to avoid the fee associated with flying a pet.

Additionally, Delta is also facing a lawsuit from a passenger who was bitten in the face by a 50 pound dog who was flying in the lap of a middle seat passenger who claimed the dog was an ESA.  Besides the risk of severe dog bite, having an unrestrained 50 pound dog riding in the lap of a middle seat passenger simply creates safety risks on a plane.  Most airlines strongly recommend that babies over 40 pounds have their own airline seat even if the child is under the age of two (when most airlines permit babies to fly for free in the lap of an adult).

Businesses, including airlines who must comply with the Air Carrier Access Act (which require accommodation of ESAs not required by other land-based businesses), are increasingly facing dilemmas on how to accommodate real service animals (which are limited under the ADA to dogs or miniature ponies) and not running afoul of the ADA while managing the needs of other customers and their obligations under various health code requirements.

Businesses are damned if they do (bites, dog’s peeing on the floor [which I recently witnessed at a popular West Palm Beach restaurant]) and damned if they don’t (ADA lawsuits and bad publicity).  The dog that mauled the Delta passenger belonged to a military veteran and we all know that a business that excludes such a dog from their premises will draw negative publicity as being anti-military, anti-veteran and anti-disabled.

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.