In January, a performance artist with an “emotional support peacock” was denied entry for a flight on United Airlines out of Newark Airport. The owner brought the bird to the airport, arguing that she purchased a ticket for him, but the airline said it had repeatedly warned her in advance that they could not safely make such an accommodation. Dexter the peacock never got to fly, and while his case has widely been accepted as an overreach on the part of his owner, the feathers ruffled by his story will have a real and lasting impact.
Airlines have seen a massive surge in assistance animals: Delta carried approximately 250,000 service or emotional support animals with its 180 million passengers last year, and United Airlines reported a 76% rise in passengers traveling with emotional support animals, from 43,000 in 2016 to 76,000 in 2017. While serious incidents are exceedingly rare, those that occur make headlines and, as the overall number of animals increases, the number of such problems has as well.
The growing adoption has acculturated many Americans to seeing all kinds of assistance animals, but evolving perspectives of what constitute legitimate uses have introduced challenges for customers and companies alike. With easy ways to obtain a letter of need online, for example, many people have begun to present their pets as emotional support animals in order to work around travel restrictions and avoid the fees typically charged to transport a pet.
This can cast reasonable doubt on claims about the need for an assistance animal, particularly with the “alternative” animals like pigs, rabbits and ducks that have drawn notable media attention. In response, the top U.S. airlines have been revisiting and refining their policies for travelers and implementing new controls to balance compliance, customer welfare and reputation risks with the potential for disruption, property damage, and safety and sanitation issues for other customers and employees. United had reportedly been reviewing its policy on accommodating assistance animals since last year, but the attention Dexter drew prompted the airline to release new policy provisions, as did Delta and American Airlines. The Department of Transportation reportedly plans to propose new official rules later this year.
Delta’s new rules, implemented March 1, include clear, basic risk management provisions. Those traveling with service or comfort animals must provide documentation of the safety and necessity of the animal 48 hours before departure and provide a veterinary health form or vaccination record. For comfort and psychiatric service animals, passengers must also provide a letter signed by a doctor or licensed mental health professional stating the passenger’s need for the animal and a signed letter attesting that the animal is trained to behave without a kennel.
Different Classes of Assistance Animals
Much of the confusion comes from the varied terms and classes of assistance animals. The only animals covered by Title II and Title III of the Americans with Disabilities Act are service animals, defined as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” These are almost exclusively dogs, although some miniature horses also qualify. The work performed by a service animal must be directly related to the individual’s disability, such as guide or Seeing Eye dogs for those with severe visual impairments, hearing or signal dogs for those with significant hearing loss or deafness, SSigDOGs (sensory signal or social signal dogs) specifically trained to assist people with autism, seizure response dogs, and psychiatric service dogs specifically trained to perform tasks that detect the onset or minimize the effect of psychiatric episodes for those with conditions like PTSD or dissociative identity disorders.
Psychiatric service animals are not the same as emotional support or comfort animals, which are not considered service animals under the ADA. Emotional support animals may, however, be covered by other regulations, such as the Air Carrier Access Act (ACAA), or local ordinances, and as such may either merit or require accommodation as well. Emotional support or comfort animals are often used as part of their owner’s medical treatment plan, such as in the treatment of acute anxiety or depression, and there is no formal standard of training required for these animals.
Unlike emotional support or comfort animals, which are intended to benefit their owner, therapy animals are certified through individual organizations to go out with their owner to help comfort and give companionship to groups of other people. This is typically done in clinical settings, like hospitals, schools or even airport outreach programs, with the aim of aiding physical, social, emotional or cognitive functioning. Animals used are primarily dogs, but can also include miniature horses, cats, rabbits and guinea pigs. Therapy organizations require certain standards of obedience training and temperament, but there is no official overall standard. These animals often wear identifying vests or bandanas, which may make them look similar to service dogs, but this does not translate into the same legal requirements for accommodation. Rather, they are allowed inside a given facility because they are specifically invited for a therapy visit there.
Developing ADA-Compliant Policies
When it comes to establishing compliant policies for the accommodation of assistance animals, the ADA makes one point very clear: facilities open to the public must accommodate a service animal working with the individual it serves, and cannot deny or alter service, including charge additional fees, for an individual with a disability and a service dog. Under the ACAA, a legitimate assistance animal must pose a direct threat to the health or safety of others to be denied accommodation—phobia or allergy are not sufficient problems, although companies are certainly free to offer alternative accommodation to a customer who expresses such objections. If it is evident the dog is working as a service dog, such as a Seeing Eye dog guiding a blind person, employees should not request or require further clarification. In most situations, documentation, paperwork, license or certification cannot be required as proof that a dog is a service dog. Such documentation can, however, be required for a therapy or emotional support animal.
Rights and requirements regarding these other assistance animals are where the issue gets murkier, leading companies and public entities to ask exactly how much they must accommodate, and how much they want to.
[pullquote]As long as you’re doing the right thing, respecting your guests when they come in, giving them the benefit of the doubt, going with the mindset that, as long as the animal is in control, it’s ok, then you’re going to be in compliance with most of your ordinances and you’re going to make your guests happy.[/pullquote]
Airports and airlines present a logical ground zero on this issue—with the overall volume of customers and the toll travel takes on some passengers, from increased stress to fear of confined spaces or heights, there are many legitimate needs for both service and emotional support animals in such settings. The ADA, industry-specific regulation like the ACAA, and state or municipal ordinances can also add up to a complex compliance challenge for a broad range of enterprises that welcome customers to public spaces, such as restaurants, hotels, retail stores, entertainment venues, government buildings and educational institutions. The associated risks can be unique and require specific consideration. In an office setting, accommodations certainly may be necessary, but the same animal coming in daily is a known entity, posing a very different risk profile than unknown animals that could come in at any time with anyone. The shifting landscape and rising adoption of assistance animals make planning for this more confusing and increasingly pressing to address.
With 540 restaurants across 49 states, staying compliant with this patchwork of provisions could be a significant undertaking for Patrick Sterling, senior director of legendary people and risk management at Texas Roadhouse. But he also thinks a focus on ensuring compliance is the wrong approach, both logistically and strategically. In developing a policy for a company focused on service, he believes it is critical to focus on doing the right thing for customers.
“Instead of trying to [meet legal requirements], why not just go to the larger accommodation? That really gets you in compliance with all of them,” he said. “As long as you’re doing the right thing, respecting your guests when they come in, giving them the benefit of the doubt, going with the mindset that, as long as the animal is in control, it’s ok, then you’re going to be in compliance with most of your ordinances and you’re going to make your guests happy.”
Indeed, he takes a rather liberal view of the issue. “If a customer brought a parakeet in, if the parakeet was in their pocket, not a problem. If the parakeet’s on the table, eating food, not appropriate,” he said. “As long as they’re not being disruptive or doing things that would be considered inappropriate, we really don’t have an issue with it.”
Jay Gates, director of risk management at RMH Franchise Holdings, which operates 163 Applebee’s locations across 15 states, takes a slightly less expansive view of the extent of accommodation and noted that, as some of the more “alternative” emotional support animals continue to make headlines, he expects to see companies “dial back their policies allowing comfort animals.” That being said, like Sterling, he believes compliance with the ADA and local ordinances should be about accommodation and trust in customers, guided by common sense.
“We don’t want to infringe upon our guests, so we don’t require any certification or anything like that—it’s usually fairly obvious when someone presents with a true service animal,” Gates said. When it comes to carrying this out in practice, he added, they advise employees that, “as long as an animal comes in and is not disruptive and is clearly providing some kind of assistance, we let it go.”
The ADA requires that a service animal be under the control of its handler, and a business can ask a person with a disability to remove the animal if it engages in sufficiently disruptive behavior, such as uncontrolled barking or jumping on other people. While his Applebee’s locations retain this right, Gates reports they have not experienced incidents where enforcement was necessary. “Typically, these animals are extremely well-trained and well-behaved—oftentimes, I would argue, they’re better behaved than some children in our restaurants,” he said.
The rigid behavioral standards required of a service dog often relieve most risk they could conceivably pose. Service dogs are required to be housebroken, vaccinated, physically controlled and quiet—indeed, excessive or uncontrolled barking can preclude a dog from ever being certified to begin with. While this level of training typically eliminates most legitimate cause for concern, for those who may worry about the impact of having animals in a food service setting, Sterling noted that the ADA always supersedes any local health code. Both Sterling and Gates also reported that they have never seen any damages or a claim that would be considered significant, and both said their franchises receive only a modest number of customer relations calls on the issue.
[pullquote]Our job is to provide legendary service, not to get into whether it’s a disability or not. Our expectation is to focus on the behavior of the animal and, by extension, the guest. As long as everybody’s in control, we’re ok with it.[/pullquote]
Increasing use of assistance animals has led both customers and employees to be more aware and accepting in practice, which both believe has helped limit issues. Customers tend to understand why a dog is there and not to touch it, Gates said. In 14 years with Texas Roadhouse, Sterling said he has seen a reduction in calls from locations asking about the issue, which he credits to both exposure and rigorous and regular training throughout the organization, from corporate staff to hourly restaurant workers.
Sterling also noted an evolution in the types of queries from staff, moving from whether assistance animals are allowed in their restaurants to what he called questions of the “low disability threshold” regarding emotional support animals. In addressing such new questions, Sterling advises, “We don’t want to get into that—it’s not our game. Our job is to provide legendary service, not to get into whether it’s a disability or not. Our expectation is to focus on the behavior of the animal and, by extension, the guest. As long as everybody’s in control, we’re ok with it.”
Implementing a Policy
Such assessment guidance gets at, arguably, the greatest risk, which comes not from allowing assistance animals in, but from the actual implementation of accommodation policies by customer-facing employees. An employee trying to ascertain whether an animal is a service animal that must be accommodated, for example, could easily veer from verification to violation of the ADA. Under federal law, places of public accommodation cannot ask a customer about their disability, but they may ask if a dog is a service dog required because of a disability (not what disability or if the person is disabled), and what specific tasks the service dog has been trained to perform.
While none of his clients have faced a situation that actually resulted in a claim, Hunter Mock, managing director of Wortham Insurance and Risk Management in San Antonio, reported he has seen close calls and at least one threatened lawsuit based on Title III requirements in a hotel setting. Ultimately, this incident came down to a training issue—an employee at the front desk asked to see certification to accommodate a service dog, not realizing such a request was based on an outdated policy that was not ADA-compliant.
This “wake-up call” has prompted him to advise other clients to be alert for similar situations and to assess and update their policies and training procedures. “The policies should outline what a ‘service animal’ is, where service animals can go, who is allowed to have a service animal and how to handle any cleanup fees,” he said. It is also important to avoid the potential perception of isolation, he noted, as individuals with disabilities cannot be precluded from areas where other customers are allowed to go.
The Strategic Value of Therapy Animals
Broadening perceptions of the benefits assistance animals offer present not only questions of reasonable or required accommodation, but also questions of strategic adoption. Beyond complying, many enterprises are actively deploying assistance animals, hoping to harness the benefits.
This duality is most apparent at airports: While airlines are cracking down on personal emotional support animals, many airlines and airports have also been bringing more animals in, adopting pet therapy programs to help calm stressed travelers. More than 40 airports in the United States host therapy animal programs, including the CLT Canine Crew in Charlotte, the ironically named Canine Animal Therapy Squad (CATS) in Denver, Los Angeles International’s Pets Unstressing Passengers (PUP), San Diego’s Ready, Pet Go program, and San Francisco’s daily Wag Brigade. Airports in San Francisco and Albany even have therapy pigs—LiLou and Bacon Bits, respectively.
In October 2017, Dallas/Fort Worth International Airport launched the K9 Crew, a pet therapy program that has already grown from 13 to 37 therapy dogs.
“Flying is very stressful, as everybody knows, and this was one of our outreach efforts to really focus on the customer and drive a positive customer experience when flying through DFW,” said Michael Yip, the airport’s vice president of risk management. “Based on a couple of studies and what we’ve seen at a couple of other airports, we recognized that this is a very easy way for us to kind of soothe the traveling experience. It’s part of a larger-scale program to improve the customer experience and help as we strive to be number one from a customer experience and industry recognition perspective.”
Indeed, these initiatives can have a large impact relative to their ease and scale. With accommodations like relief areas already in place for other working dogs in the airport and trained handlers who volunteer to bring the therapy dogs in, there are few discrete financial costs. Each dog in San Diego’s “Ready, Pet Go” program reportedly interacts with about 200 individual travelers in the course of a two-hour shift, and that is to say nothing of the publicity or social media impact.
At DFW, risk management has played a key role in crafting and running a successful therapy animal program, from centralizing communication among different groups across the enterprise to ensuring comprehensive safety and insurance policies are in place. Yip’s team identified most potential issues up front by engaging various law enforcement and airport stakeholders in a thorough risk assessment process. The airport already hosts working dogs that are brought in by the TSA and the Texas Department of Public Safety, and as the temperaments and responsibilities of detection dogs and service or support dogs are so fundamentally different, they needed to establish protocols to keep these groups separate. The airport oversees communication and scheduling, for example, of planned TSA activity in a given terminal and any animal ambassador visits.
Beyond interaction among animals, Yip was concerned about ensuring safety of people interacting with the different groups of dogs, as the admittedly minor concern about bites presents one of the most concrete risks. To that end, branding and visibility have functioned as both a publicity tool and a risk mitigation measure, he said. Grey vests worn by the K9 Crew function as distinct uniforms, and the active social media promotion around therapy dog visits helps raise both excitement and awareness.
These measures and broader public education overall have helped create a kind of “inherent risk control,” Yip believes. People better understand what assistance animals do and which animals to leave alone, and the owners of service and emotional support animals tend to understand the rules and how to monitor and protect their animals in a busy public space.
The experienced handlers who operate such programs also control risk for customers and the airport alike. DFW’s program is membership-based, so any individual who wants to take part must to be affiliated with a national therapy dog association or pet therapy program, which also has minimum insurance requirements, and the airport has one master contract with the association. As with other vendor agreements, he engaged the airport’s liability insurers to review coverage related to third parties and check for any exclusions under current policies.
“We partner with this organization that manages it, so everyone has gone through their training and been vetted and the organization makes sure they have insurance in place, and we contract with the one entity and say, ‘these are the rules of engagement,’ and we endorse it and brand it and do everything from that perspective,” Yip explained. “It’s no different than another contract with a vendor, basically.”
As DFW’s program is part of a broader customer experience initiative, it is a bit too early to benchmark its overall results. However, the three-fold increase in participation in the program so quickly reflects its initial success, Yip said, and the tremendous amounts of positive feedback and customer engagement are clear from even a cursory look at the airport’s social media.
“I think a lot of people are seeing the kind of brand and reputation enhancements these programs can bring as well,” Yip said. “Particularly with dogs, it’s almost like tapping into this sort of underground, feel-good movement. It’s something a lot of my colleagues have been talking about and we’ve had a number of inquiries because our program has gotten quite a lot of press, so I wouldn’t be surprised if you see more airports starting similar kinds of programs.”