Earlier this month, Delta Air Lines announced new rules regarding Emotional Support Animals traveling on their planes.  Written " as a result of a lack of regulation that has led to serious safety risks involving untrained animals in flight," Delta writes that their rules "support Delta’s top priority of ensuring safety for its customers, employees and trained service and support animals, while supporting the rights of customers with legitimate needs ... to travel with trained animals."

While I am pleased to know that Delta is willing to comply with application federal laws regarding Emotional Support Animals, I am disappointed that they chose to increase paperwork burdens on legitimate animals, while apparently failing to curtail consequences for animals that are actually not protected bu the applicable ESA laws. 

Delta reports that "[c]ustomers have attempted to fly with comfort turkeys, gliding possums known as sugar gliders, snakes, spiders and more. Ignoring the true intent of existing rules governing the transport of service and support animals can be a disservice to customers who have real and documented needs. Delta has seen an 84 percent increase in reported animal incidents since 2016, including urination/defecation, biting and even a widely reported attack by a 70-pound dog. In 2017, Delta employees reported increased acts of aggression (barking, growling, lunging and biting) from service and support animals, behavior not typically seen in these animals when properly trained and working."

Delta is correct that these incidences are absolutely unacceptable.  Not only as a matter or common sense, but as a matter of law: animals meeting the criteria described above are simply NOT protected by the applicable federal law.

Why not?  Because these animals fail to meet requirements for all ESAs: they must be healthy and properly behaved. The are animals described in Delta's release have been brought on the planes without regard to the requirements of the law.  Discussing the matter with friends, I have discovered that many of us have an experience of an animal on the plane jumping on our laps; or excessively growling or barking; or even of biting, urinating or defecating on a plane.  These animals should absolutely not be allowed to be treated as ESAs, because they are NOT ESAs.  By failing the behavioral requirements, they are just another animal on the plane, subject to the same rules as any other pet.

As Delta states, "the Title 14 Code of Federal Aviation Regulations § 382.117 dictates, 'you must permit the service animal to accompany the passenger with a disability at any seat in which the passenger sits, unless the animal obstructs an aisle or other area that must remain unobstructed to facilitate an emergency evacuation.'"  In addition, under Federal Law, a service animal and an emotional support animal are required to be healthy and well behaved.  Even if the animal is a service animal, it will not be allowed to accompany its handler if it fails to meet this minimal health and behavioral standard.

The approach that Delta takes simply requires additional documentation be provided by the ESA handler 48 hours in advance of the flight.  In addition to a letter from a treating healthcare professional attesting within the past year that the handler has a condition that requires the ESA and that identifies the ESA by breed and name, handlers must now also provide a veterinary certificate regarding good health and vaccinations, and a self-executed attestation indicating that you understand that your ESA must behave.  These are things that every ESA handler has on hand, but know they must be provided 48 hours in advance and requires additional signature by the ESA's veterinarian.

This is an awful example of a behavior that I call "able-splaining."  In order to be accompanied by your ESA on a Delta flight, they basically require:

1. A permission note from your doctor or counselor
2. A permission note from your veterinarian
3. A permission note from yourself acknowledging that you have a trained animal and that, if it behaves unlike a trained animal, it can be denied passage.

For people who have identified a need for an ESA and have invested the time and effort in establishing a relationship with an appropriate animal, these are not new guidelines.  All that we are adding are new paperwork requirements that improperly tries to control the behaviors of "cheaters" by drowning the righteous in paperwork.

Here's how I would prefer that Delta address the "cheaters" or insufficiently behaved ESAs:

1. Update ESA information pages to reflect the requirement that the animal be well behaved.
2. Update the Pet Travel policies to specifically indicate that pets must travel according to these rules.   
3. Create an automatic penalty schedule for abuse of ESA rules that includes:
   1. If the animal is not an ESP, incurring pet fees at a penalty rate or two or three times the normal rates;
   2. Incurring liability for additional expenses incurred by the airline to bring the cabin back into compliance, whether that includes cleaning, landing, gate access, take off fees and the like;
   3. Incurring liability to compensate other travelers for their inconvenience.
4. Making clear that any harm that the ESA inflicts on people are subject to normal liability rules to make victims whole.

I believe if passengers are aware that the consequences for "being caught" or for traveling with an insufficiently trained are significant, we will see a great reduction in animals that harm other passengers on flights.

The clear priority must be the safety of other passengers (and animals) on the flight.  Catching "cheaters" should not be a high priority; ensuring and enforcing  consequences for harm will go much farther in protecting the health and safety of fellow flyers. 

We are entitled to expect ZERO harassment by an ESA.  This means, no growling, no lunging, no biting, no urinating, no defecating, no use of the human furniture by an ESA in an inappropriate manner.  An animal that is not quickly brought under control by their handler causes the handler to immediately lose their right to have their ESA present, and the ESA immediately loses its status as an ESA. 

​Keep in mind, though, that an isolated bark or sniff that is quickly brought in line by the handler does NOT count; this applies only when the handler is not able to quickly bring the animal's behavior under control.  

We are entitled to expect that the ESA is clean and healthy. This means that there are no offending odors, no excessive dirt or shedding, no open sores, no dribbling out of orifices.  Also, it means no active infections, an appropriate temperament for being out in public spaces, and all vaccinations are up to date. 

Should we experience harm caused by the ESA, we are entitled to expect appropriate compensation from the handler.  If I am bitten, my medical costs should be covered.  If my clothing is damaged or soiled, cleaning/repair/replacement costs should be covered.  This is true even if the animal is not an ESA; similar expectations are in place when the incident is caused by a neighbor's pet.  

Of course, you also have a right to have the harm stop immediately.  Most local statutes allow you to destroy an attacking animal.  The ESA loses its protected status once it is no longer under effective control of its handler.

If we have a health condition that is triggered by the ESA, we are entitled to have our needs accommodated.  So, for example on an airplane, if you have a severe allergy or a disabling anxiety triggered by the ESA, you may request a different seat.  Be reasonable about who should move; if one of you is seated with family, the other should probably move; if both of you are seated with family, you can have family members shuffle seats to maximize distance between yourself and the ESA.  With  courtesy and good humor, a compromise that suits both people should be found.

Why someone needs an ESA is none of our business.  It is not for each of us to determine whether a condition warrants the use of an ESA.  An ESA can be a startlingly effective way to treat numerous conditions, and effectiveness can be highly individualized.  In a society that historically discounts the importance of accommodations for invisible disabilities, bringing an ESA out in public is a brave act.  As long as the ESA does not obviously pose a health or safety risk, leave it alone. 

How the ESA "earned" its status as an ESA is none of our business.  Once again, it is not for any of us to create some arbitrary standard for all ESAs.  They are already subject to standards that protect the health and safety of the rest of us.  Just as we are not in a position to determine if an ESA is needed, we are not in a position to determine what is required in that ESA's training.

A public school that tells you that they lack the capacity to provide accommodations or services is breaking the law.  Public schools may not tell you that "instead" of determining eligibility for services, that they will place your student in an RTI (response to intervention) group to see if that helps.  Public schools are especially forbidden from setting a predetermined cap for how many students will be allowed to access special services.