Should Co-Worker's Asthma Trump Employee's Need for Service Dog?

An article appearing in the New York Times of May 11, 2010, describes an employee of the City of Indianapolis who is allergic to paprika with a reaction potentially so severe that it could be fatal. Steven Greenhouse, "When Treating One Worker's Allergy Sets Off Another's." The employee, Emily Kysel, obtained a service dog trained to alert her to the presence of paprika by jumping on her. The dog cost $10,000. The city initially permitted her to bring this dog to work but a fellow employee, allergic to dogs, suffered an asthma attack. Ms. Kysel’s boss then told her she could no longer bring the dog and advised her that if she did not report for work without the dog, she would be put on indefinite unpaid leave. She filed a complaint with the Equal Employment Opportunity Commission, pending as of this writing.

Two allergists wrote letters on behalf of Ms. Kysel, and the article indicates that she had almost died from eating chili five years before her problems with Indianapolis. She has had to go home from work when fellow employees were eating food with paprika near her, and when permitting her to bring the dog to work—before the allergic reaction of the fellow employee to the dog—employees were told not to have food with paprika in the office. The article mentions that blind employees are permitted to bring guide dogs to work but it is not specified if any such employees and dogs are in the unit where Ms. Kysel works. If so, it would appear that some shifting of offices might solve the problem, and a failure to do so could buttress Ms. Kysel’s discrimination argument. Such a situation would also suggest that the city is favoring one type of service dog over others, but again the circumstances of the guide dog users are not described in the article.

Cases have considered conflicts between individuals with service dogs and individuals with allergies, as has the Department of Transportation in a lengthy discussion in the final air carrier access rules. Generally, the rulings have concluded that an individual with an annoying but not dangerous allergy must accept the presence of the dog, though the facility should attempt to find a way to keep the individuals out of each other’s way. In Lockett v. Catalina Channel Express, 496 F.3d 1061 (9th Cir. 2007), a blind passenger with a guide dog could not be excluded from the Commodore Lounge of a ferry to Catalina despite the fact that a no-animals policy for the lounge was introduced for the comfort of a passenger with allergies.

In the preamble to its air carrier access rules, the Department of Transportation stated:

“Forcing the passenger with the service animal to move to another seat to make another passenger more comfortable, let alone denying transportation in the cabin to the service animal or its user, is not an option.

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“If a passenger provides credible verbal assurances, or medical documentation, that he or she has an allergy to a particular sort of animal that rises to the level of a disability (e.g. produces shock or respiratory distress that could require emergency or significant medical treatment), and there is a service animal of that kind seated nearby, the carrier should try to place as much distance as possible between the service animal and the individual with the allergy. Depending on where the passengers are initially seated, this could involve moving both passengers. For example, if both are seated toward the center of the cabin, one could be moved to the front and the other to the back.

“It is unlikely that the mere presence of an animal in the same cabin would, by itself, even if located at a distance from an allergic passenger, produce a severe allergic reaction rising to the level of a disability. However, if there was strong evidence that this was the case, it could be necessary to rebook one of the passengers on another flight. Since one disability does not trump another, the carrier should consider a disability-neutral means of determining which passenger would have to be rebooked (e.g., which passenger made the earlier reservation). We emphasize that we expect any such situation to be extremely rare, and that carriers should not rebook a passenger absent strong evidence that the mere presence of an animal in the cabin, even in a location distant from the allergic passenger, would produce an allergic reaction rising to the level of a disability.

“There may be situations in which, with respect to a passenger who brings a very serious potential allergy situation to the attention of your personnel, it is appropriate to seek a medical certificate for the passenger.” 72 Fed. Reg. 27614, at 27655, 27660 (5/13/2008)

It is hard for me to believe that the City of Indianapolis is not a large enough employer, with a considerable amount of office space, for some accommodation not to be possible for both employees with their separate allergies. Nevertheless, it is conceivable that seniority or some other objective criterion may have to determine which employee has priority in this situation.

In this context, though I don’t like it, one argument could be that a stern enforcement of the no-paprika policy could be viewed as a factor weighing in the dog-allergic employee’s favor. Ms. Kysel’s situation differs from someone who suffers seizures who has a seizure-response or seizure-alert dog. With a service dog whose functions are connected with the handler’s seizures, there is nothing the employer can do to limit the possibility of the dog being needed in the work environment. With a dog that alerts to a spice that might cause something like a seizure, however, the employer can prohibit employees from bringing that spice to the office. Or is this naïve? Some employees, according to the article, expressed skepticism as to Ms. Kysel’s allergy, referring to it as an oddity. Without a dog to detect their violations of the anti-paprika rule, would they be likely to honor it? Would Ms. Kysel be in constant danger of someone intentionally or accidentally bringing a food with paprika into the office? Would other employees always know the food contained paprika? It would seem that a no-food policy would have to be implemented to be sure that no paprika comes into the office. Even then, with the sensitivity of a dog’s olfactory system, would the dog alert when an employee returns from lunch with paprika on his breath?

I spoke twice at the ABA Tax Section meetings in Washington, DC, on May 7 and 8 regarding the deductibility of service dogs, and shifting away from the access issue, I also think there are interesting tax questions regarding Ms. Kysel’s dog. I have no knowledge of whether she deducted the acquisition cost of the dog, as likely permitted under Section 213 of the Internal Revenue Code, and Regulation 1.213-1(e). The dog was acquired for a medical condition and probably would not have been acquired (at least at the $10,000 price tag) had it not been for that condition. The training and maintenance costs are deductible under other IRS pronouncements, and the condition that the dog provides a service for is a physical disability, as specified in Publication 502. (I have argued in several other places that I do not believe Publication 502’s restriction of service dog functions to physical disabilities is valid. See, e.g., Tax Notes, August 24, 2009.) But what if Ms. Kysel returns to work without the dog? Does the dog still provide a service function if there is no paprika in Ms. Kysel’s house and she does not enter markets or restaurants where it may be present? I think the answer is still yes, because she may have to avoid contact with paprika even in environments where it is not frequently present. Presumably the dog, like narcotics and explosives detection dogs, requires occasional testing to make sure it continues to alert to the target odor, which would also be a continuing expense.

As the world of service dogs becomes more complex, I believe that the IRS, as the City of Indianapolis in Ms. Kysel’s case, will begin to face some difficult situations.