Closing Emotional Support Animal Loophole Good For Airlines And Passengers
People do a lot of things to avoid airline fees. Bring the bag to the gate hoping it will be gate checked rather than pay the checked bag fee. Have friend bring you a third bag beyond the point the airline has checked that you only have two to carry on. More cynical, yet still done, is to ask for wheel chair to board early but then walk off the plane at the other end. But a subtle change in a law just closed the loophole on people who bring pets and claim that they are emotional support animals in order to save the onboard pet fee.
This is very sound policy and the days of a 300-pound pig flying in first class, or sitting next to a peacock, turkey, snake, or the more mundane untrained dog or cat are likely over.
The specific change that puts the brakes on this behavior is that emotional support animals are no longer considered “service animals”. A service animal is defined by the American with Disabilities Act (ADA) as “a dog that has been individually trained to do work or perform tasks for an individual with a disability. The task(s) performed by the dog must be directly related to the person's disability.” Airlines are required to carry service animals for no additional charge. Prior to this change, emotional support animals were classified as service animals and this classification exploded the business of creating formal documentation for emotional support animals, often with no training or any relationship to a true disability of the person carrying the pet. It was a large loophole for avoiding pet fees and people drove through it in Humvees.
Airline employees will tell you that people with real disabilities present few problems in the airport environment. They know how to use their equipment and/or how to work with their true service animal, often are quite independent, and ask for accommodation but not outward special treatment. Those abusing these policies are often easy to spot — their animals are often clearly pets and treated a such, are usually untrained for any service, the passenger often makes a big deal about it, and they generally stand out. Those with real disabilities and real service animals benefit greatly from this change, since it will reduce or eliminate those trying to appropriate their ADA benefit. Flight Attendants, too, undoubedtly see this as an improvement.
I have discussed with a lawyer friend the idea of claiming him as my emotional support animal, and getting a note from a friendly doctor saying that I am emotionally fragile when not traveling without my lawyer. Then, I would buy a ticket on a major US airline, claim him as my emotional support animal, and see what happens. As silly as this sounds, how different is this than traveling with a large animal that doesn’t even understand the environment? The idea would be to bring awareness of this loophole to its absurd conclusion. Thankfully, it was obvious even without this and now that this loophole is closed, expect that airlines will no longer accept the emotional support animal while staying fully compliant with the service animal regulations. I also expect that some people will now try to have their pet classified as a service animal and some unscrupulous entrepreneurs may try to find a way to support this. The loophole may be closed, but that doesn’t mean that people won't look for a new one.
Employment Law Update: Do’s and Don’ts for Employers on Mandating COVID-19 Vaccinations
Amidst the FDA’s recent approval of at least two COVID-19 vaccines – and given the divergent views as to who will be able or willing to receive them in the coming months – employers are now considering whether and to what extent they can mandate vaccinations of their employees. Some clarity as to these much-debated issues was provided in the form of Equal Employment Opportunity Commission (EEOC) COVID-19 guidance issued on December 16, 2020.
The guidance pertaining to vaccinations is supplemental to the EEOC’s existing COVID-19 guidance for employers, which was first issued in March 2020. The latest guidance focuses primarily on the intersection between a vaccination mandate and the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA) and Title VII of the Civil Rights Act of 1964 (Title VII).
As an initial matter, the EEOC guidance clarified that being vaccinated is not considered a “medical examination.” Simply by administering the vaccine to protect employees from contracting COVID-19, employers are not eliciting information regarding employees’ health status or performing a medical examination. However, pre-screening questions, which per CDC guidelines may be necessary to ascertain whether there is a medical reason preventing someone from being vaccinated, can cross the line of the ADA rule prohibiting disability-related inquiries, as such questions are likely to seek information regarding an individual’s possible disability.
One way for employers to avoid any possible violation of the ADA rule is to have a third-party unrelated to the employer (such as a pharmacy) ask the pre-screening questions and administer the vaccine. An employer can require that employees show proof they received the vaccine but should warn employees not to include any sensitive medical information in such proof.
Alternatively, if the employer is administering the vaccination directly, there are two options. One is to offer vaccination on a voluntary basis, which would in turn render any answers to disability-related questions voluntary. On the other hand, if employer-administered vaccination is desired to be mandatory– which is most likely to occur in the case of healthcare industry employers – the employer must show that any disability-related inquiry is “job-related and consistent with business necessity.” This requirement is met if the employer has a reasonable belief, based on objective evidence, that the employee’s refusal to answer questions and thus receive the vaccine poses a “direct threat” to the health of the employee or others.
There are two viable exceptions to a vaccination mandate, specifically based on (1) disability, and (2) sincerely held religious belief.
If an employee is refusing to be vaccinated due to disability, the employer must demonstrate that the employee poses a direct threat due to “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodations.” In such a situation, the employer must evaluate whether the employee presents a “direct threat” by factoring in: (1) duration of the risk; (2) the nature and extent of the potential harm; (3) the likelihood of harm; and (4) how imminent is the potential harm. Ultimately, if the employee presents a direct threat to the workplace, the employer must explore the options to accommodate the employee – for example, by allowing telework. Only if no reasonable accommodation is possible, can the employer exclude the employee from the workplace and, even then, before terminating the employee, the employer must consider whether other federal, state, or local laws provide additional protection.
The second exception from the vaccination mandate is based on the requirement that employers provide a reasonable accommodation for a sincerely held religious belief. Such accommodation is owed unless it presents “undue hardship,” which under Title VII is characterized as more than a “de minimis cost or burden to the employer.” Unless there is an objective basis for the employer to question the sincerity of the employee’s religious belief, it is prudent not to question its genuineness.
Finally, it is important that employers avoid asking questions – especially during pre-screening – that may elicit an employee’s genetic information in violation of GINA.
In sum, while employers can mandate vaccination, any such decisions should be carefully considered. It is essential that employers provide appropriate staff training to deal with any request for accommodations through a fair and structured interactive process. Also, any information relative to an employee’s possible disability or request for accommodations must be kept confidential.
Walters v. Simply Skinny Ties LLC
Injunction Requiring Upgrades Would Make Website More Accessible to Visually Impaired
Case Details
Plaintiff alleges issues in its Complaint including the following:
- Defendant’s Website is so constructed that, although it contains an accessibility widget, the Website remains inaccessible.
- Defendant’s Website’s form fields do not have accessible labels.
- The search and cart icons are missing accessible labels.
- Labels are available onscreen but they are not programmatically associated to each field. This results in the labels not being announced when a screen reader user tabs to each field.
Plaintiff asserts the following cause(s) of action in its Complaint:
- Title III of the ADA, 42 U.S.C. § 12181 et seq.
Plaintiff seeks the following relief by way of its Complaint:
- A Declaratory Judgment that at the commencement of this action Defendant was in violation of the specific requirements of Title III of the ADA described above, and the relevant implementing regulations of the ADA, in that Defendant took no action that was reasonably calculated to ensure that its website was fully accessible to, and independently usable by, individuals with visual disabilities
- A permanent injunction pursuant to 42 U.S.C. § 12188(a)(2) and 28 CFR § 36.504(a) which directs Defendant to take all steps necessary to bring its website into full compliance with the requirements set forth in the ADA, and its implementing regulations, so that its website is fully accessible to, and independently usable by, blind individuals, and which further directs that the Court shall retain jurisdiction for a period to be determined to ensure that Defendant has adopted and is following an institutional policy that will in fact cause them to remain fully in compliance with the law—the specific injunctive relief requested by Plaintiff is described more fully in paragraph 13 above.
- Payment of actual, statutory, and punitive damages, as the Court deems proper;
- Payment of costs of suit
- Payment of reasonable attorneys’ fees, pursuant to 42 U.S.C. § 12205 and 28 CFR § 36.505, including costs of monitoring Defendant’s compliance with the judgment (see Gniewkowski v. Lettuce Entertain You Enterprises, Inc., Case No. 2:16-cv-01898-AJS (W.D. Pa. Jan. 11, 2018) (ECF 191) (“Plaintiffs, as the prevailing party, may file a fee petition before the Court surrenders jurisdiction. Pursuant to Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 559 (1986), supplemented, 483 U.S. 711 (1987), the fee petition may include costs to monitor Defendant’s compliance with the permanent injunction.”); see also Access Now, Inc. v. Lax World, LLC, No. 1:17-cv-10976-DJC (D. Mass. Apr. 17, 2018) (ECF 11) (same)
- The provision of whatever other relief the Court deems just, equitable and appropriate
- An Order retaining jurisdiction over this case until Defendant has complied with the Court’s Orders.