Today’s blog entry is a two for one. First, we explore some stunning developments in the area of housing and animals when it comes to persons with disabilities. Second, we explore a memorandum opinion from DOJ to the acting chair of the EEOC when it comes to remote work as an accommodation for religious liberty purposes. As usual, blog entry is divided in the categories and they are: HUD withdrawal of the circulars involving ESA and SA’s; memorandum opinion pretty acting chair of the EEOC; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories, but since this blog entry is so short, you will probably wind up reading the whole thing.

 

I

HUD withdrawal of the circulars involving ESA and SA’s

 

On September 17, 2025, HUD, here, withdrew the 2013 and 2020 circulars dealing with people with disabilities and their animals in housing. What this means is that issues pertaining to people with disabilities and their animals that enable them to enjoy the benefits of housing will now be dominated by state law. Not every state has laws on point, but some, such as the one we discussed here, do. The result of this is that it is going to be very much a Wild West situation with respect to animals in housing when it comes to persons with disabilities. It also means that you may see an awful lot of litigation over whether ESA’s even have to be allowed in the first place. Prior to the withdrawal of these guidances, it was debatable per Loper Bright, whether ESA’s were in play. Now that the guidances/circulars have been withdrawn entirely, it is very much an open question about whether ESA’s remain a thing so to speak. Since the FHA has a very brief final regulation talking about a service animal with respect to the blind, service animals are still going to have to be allowed under the FHA. I do expect we will see an awful lot of people try to figure out how to get their animal to be a service animal. It often doesn’t take much training to do that. An open question is whether a court might interpret Loper Bright in such a way as to allow an animal that is not a dog but otherwise functioning as a service animal, to be counted as a service animal under the FHA.

 

II

Memorandum Opinion For the Acting Chair, EEOC

 

  1. Remote work is a big issue in the area of ADA now that employers are insisting that people come back to work at least for some of the time. On September 18, 2025, DOJ issued a memorandum opinion talking about remote work in the context of religious liberty in light of Pres. Trump’s executive order mandating return to work at a physical location. Some of what is said in this DOJ opinion definitely has ramifications for the ADA universe, and so the memorandum is worth covering in that respect.
  2. The memorandum focuses on situational telework and not on full-time telework.
  3. The memorandum specifically references EEOC guidances on reasonable accommodations with respect to telework as it pertains to persons with disabilities.
  4. The memorandum states that for more than 20 years, telework and similar flexible work schedules can constitute reasonable accommodations within the meaning of similar federal antidiscrimination statutes (ADA explicitly referenced).
  5. The memorandum mentions that there have been fundamental changes to how we work and significant legal changes in how work must accommodate worship. It also references how everybody was working from home during the Covid-19 pandemic and how people thought though changes might be permanent.
  6. The memorandum states that as telework has become more prevailent, both EEOC and courts have recognized that it may provide a viable option to accommodate individuals protected under federal anti-discrimination laws
  7. The memorandum references Groff v. DeJoy, which we discussed here.
  8. In 2003, the EEOC issued a guidance about accommodating individuals with disabilities wishing to work from home.
  9. Where an employee’s workstation is a long distance from the location of the required religious observance, telework may reduce the number of hours the employee would otherwise take off for that observance. Such an arrangement has the potential to benefit all parties, minimizing overall absence and disruption and increasing efficiency in certain circumstances.
  10. The return to work memorandum does not preclude situational telework for two reasons: 1) the memorandum defines remote work specifically not as a full-time situation and so is and subject to the return in person executive order at all; 2) the Executive Order allows department and agency heads to make exemptions that they deem necessary and the Executive Order has to be implemented consistent with applicable law; and 3) agencies have broadly way and deciding when to permit telework.
  11. Whether a particular accommodation is warranted in any given context is always a fact specific inquiry.
  12. A categorical exclusion of situational telework as a form of religious accommodation has no basis in the Executive Order.
  13. Refusing an accommodation in the name of purported fairness toward employees who have returned to work is inconsistent with Title VII.
  14. By definition any “special accommodation,” requires the employer to treat an employee with a disability differently, i.e. preferentially.

 

III

Thoughts/Takeaways

 

  1. Much of what is said in this memorandum has even more force when it comes to persons with disabilities. In fact, the memorandum several times refers to documents pertaining to the rights of people with disabilities.
  2. Situational telework if it is a thing for religious observances and religious liberty purposes, it is most certainly a thing for persons with disabilities.
  3. Full-time telework is still a possibility for persons with disabilities as the memorandum specifically references documents talking about telework being full-time possibly.
  4. I don’t like the word “special accommodation,” as there is nothing special about the accommodation that a person with a disability needs to get to the same starting line as a person without a disability. In the disability community, you see a similar debate with respect to the term “special needs,” which I don’t like either for the same reason.