I did mention in my last blog entry that I might not be posting this week. Turns out, I had some time over the Memorial Day weekend to do a post, so here goes. I do hope everyone had a great Memorial Day weekend.

The blog entry for the week is a two for one that discusses the latest developments from HUD pertaining to ESA’s. It also discusses a published decision from the Sixth Circuit decided May 13, 2026, talking about whether leave (unpaid or paid), is a reasonable accommodation for a person needing to train their service dog. That decision also has some language in it discussing whether it is the disability being accommodated or is it the essential job functions being accommodated. As usual, the blog entry is divided into categories and they are: latest developments from HUD and highlights of its internal memorandum; a brief history of ESA jurisprudence; the situation in Tumbleson v. Lakota School District; leave to train a service dog is a reasonable accommodation but it doesn’t have to be paid; it is the essential functions of the job that is being accommodated and not the disability; and Tumbleson thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories (there is a lot to digest in this blog entry).

I

Latest Developments From HUD And Highlights of Its Internal Memorandum

Over Memorial Day weekend, the New York Times reported that HUD in an internal memo said that it will no longer support ESA’s in housing (the memorandum can be found here). This is something that I predicted in this blog entry, here. After the pulling of the HUD guidances by HUD, I can’t say that I am surprised. Also, even if the prior HUD guidances had remained, it is questionable, as we discussed here for example, whether the guidances would have survived Loper Bright, particularly in private housing.

Here are the highlights of the internal memorandum.

 

  1. Going forward HUD will find reasonable cause and recommend charges only for those cases involving animals trained to provide disability related assistance.
  2. The memorandum explores the history of emotional support animals and service animals at HUD. Turns out, §II of this blog entry which I did before seeing this internal memorandum very closely tracks the history laid out in the HUD internal memorandum.
  3. In 2026, it remains an immense challenge to determine whether an animal related reasonable accommodation should be granted or denied. Though the 2020 guidance was well-intentioned, the guidance failed to provide greater clarity on the distinction between pets and emotional support animals with the result that an entire industry has arisen to convert pets into emotional support animals. Further, the guidance has the effect of imposing categorical fair housing obligations on housing providers without complying with the notice and comment requirements of the Administrative Procedure Act, which HUD believed by itself is enough to resend the guidance.
  4. The memorandum references as one of its apprendices a case that we discussed here. HUD agrees with the Henderson court that HUD’s 2020 notice is unpersuasive. Accordingly, after analyzing that notice, HUD permanently rescinds that guidance.
  5. In the absence of HUD regulations defining animal-related reasonable accommodations, the regulation for service animals under Titles II and III of the ADA are instructive.
  6. Going forward, HUD will use the training component of the ADA’s definition for service animals to assess animal related reasonable accommodation complaints under the Fair Housing Act. Applying similar reasonable accommodation standards between the FHA and Title II, III of the ADA will provide improved clarity and predictability for tenants and housing providers alike.
  7. Defining an assistance animal as an animal trained to assist with a disability is the best guarantee of evenhanded enforcement of the FHA.
  8. Going forward, HUD will find reasonable cause for failure to provide a reasonable accommodation involving the waiver of a pet policy only where the animal has been individually trained to perform work or perform tasks directly related to the complainant’s disability.
  9. While requests to waive pet policy for animals trained to perform specific disability -related services are presumptively reasonable, requests to waive pet policies for untrained ESA’s are not. HUD no longer expects housing providers to categorically extend accommodations for trained assistance animals to untrained ESAs.
  10. In a footnote, which also tracks my thoughts below that I wrote before seeing this memorandum, HUD notes that an animal related reasonable accommodation under the FHA could involve a species other than a dog provided the animal is trained to perform a disability related service.
  11. Regional directors must send all open ESA cases to the Acting Deputy Assistant Secretary for Enforcement and Programs for a case-by-case determination on the merits.
  12. While the language and definitions in the ADA regulations have changed over time, HUD’s regulations for animal related reasonable accommodation by private housing providers have not been updated in 35 years. HUD intends to engage in notice and comment rulemaking regarding animal related reasonable accommodations, with the aim of harmonizing regulations, to the maximum extent possible, with those of the ADA.
  13. Whether a particular accommodation is reasonable under the circumstances is the type of fact intensive, case specific determination that benefits from notice and comment rulemaking.

 

II

A Brief History of ESA Jurisprudence

The question that this all raises is just where did an ESA as a reasonable accommodation in housing originate from. There are cases dealing with animals in housing as a reasonable accommodation stretching back to 1995. For example, the Seventh Circuit in Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995), decided that a question of fact existed with respect to the skills of the animal that needed to be addressed before the animal could be allowed in housing. Similarly, Green v. Housing Authority of Clackamas County, 994 F. Supp. 1253 (D. Ore 1998) involved a hearing dog that was trained to assist D/deaf individuals. As far as I have been able to determine, the first case establishing that an ESA was a reasonable accommodation if it was necessary for a person with a disability to enjoy private housing is Overlook Mutual Homes, Inc. v. Spencer, 666 F. Supp. 2d 850 (S.D Ohio, 2009). In that case, the court held that emotional support animals could be a reasonable accommodation for a person with disability when necessary for them to enjoy housing. That court decision leaned heavily on HUD’s final regulations dealing with public housing and what HUD intended to do when it formulated that regulation. The public housing regulation is phrased quite a bit differently from HUD’s private housing regulation. Of course, eventually HUD came up with its animal guidance in 2013 and again in 2020 before withdrawing both of them in September 2025 and now permanently rescinding the 2020 guidance. The question I have is this: Overlook said that the history of the public housing final regulation applied equally in private housing. However, as it stands today, the HUD final regulations for public housing and for private housing are quite a bit different from each other, and that distinction may or may not lead to different results with respect to emotional support animals after Loper Bright and the pulling/rescinding of the guidances (the pulling/rescinding of the guidances essentially means that those guidances no longer exists). Also, as mentioned in my rapidly evolving world of ESA/service animals blog entry, here, Loper Bright can actually work to the advantage of a person with a disability. A plain reading of HUD’s final regulation on animals in private housing also suggests that any animal acting as a service animal as defined by the ADA would be permissible in private housing even if it was not a dog (HUD is taking exactly this position in its internal memorandum).

When it comes to emotional support animals, the disability rights community can be all over the place when it comes to emotional support animals. On the one hand, they definitely provide a need for people with disabilities to enjoy their housing. On the other hand, they can cause a problem for service animals as defined by the ADA. Finally, I do wonder what is the percentage of emotional support animals that are actually psychiatric service animals. If matters that have come across my desk are any indication, I suspect that the percentage is quite high. Of course, any narrowing of whether emotional support animals are permissible in housing will definitely lead to more claims of an animal being a psychiatric service animal. As I have mentioned before, the line between emotional support animal and a psychiatric service animal can be incredibly small. Also, advocates for ESAs are already constructing arguments against this memorandum and will not go down quietly.

If the new restrictions on emotional support animals and housing are litigated and taken all the way to the Supreme Court, I have absolutely no idea what the Supreme Court would do on this. Outside of employment, the Supreme Court has actually been very receptive to persons with disabilities. However, this Supreme Court is very corporation oriented. You also have very different final regulations with respect to public v. private housing. Finally, you now have Loper Bright to contend with as well. The amount of money involved to take this case all the way to the Supreme Court would be enormous. One wonders if the better approach for persons representing a person with a disability with an emotional support animal so to speak would be the psychiatric service animal approach rather than litigating on ESA grounds.

 

III

The Situation in Tumbleson v. Lakota School District

Plaintiff has Usher syndrome, which results in severe sight and hearing impairments over time. Even so, she performed excellently in the classroom. She decided that she needed a service animal in order to deal with her situation. When she first applied for a service animal, she was denied. 10 years later after her hearing and sight had further deteriorated, she was able to apply to the service animal training place and was accepted. In order to complete the training, she needed to be on site and had to miss work. She asked for paid leave, which was denied because the school district did not see how the training of a service dog fit any of its paid leave categories. However, they did grant unpaid leave, which she took. The dog has made a positive impact at her school. She then sought retroactive paid sick leave and this litigation resulted. While the plaintiff also sued for violation of FMLA with the court rejecting that claim, we aren’t going to discuss that section of the opinion, and I will leave that discussion for FMLA experts should they so desire to opine.

 

IV

Leave to Train A Service Dog Is a Reasonable Accommodation But It Doesn’t Have To Be Paid

  1. In the Sixth Circuit, McDonnell Douglas is utilized in ADA disparate treatment cases.
  2. The District Court’s conclusion that denial of paid leave was not an adverse employment action under the ADA because it allowed the plaintiff to take unpaid leave is quite debatable after Muldrow. See this blog entry for example.
  3. In Muldrow, which we discussed here, the Supreme Court held that Title VII requires an employee to only show some harm and not significant, serious, or substantial harm with respect to an identifiable term or condition of employment. Since the ADA reaches discrimination and the terms and conditions of employment, courts are applying Muldrow to the ADA.
  4. Denial of paid leave could certainly be described as a harm respecting a term or condition of employment because the unpaid employee is worse off than a paid one.
  5. It is unnecessary to decide the case on adverse action grounds because Lakota has a neutral reason for denying plaintiff’s paid sick leave: her request to attend guide-dog training did not fall within the definition of sick leave under the school board’s sick leave policy, Ohio law, and the collective bargaining agreement.
  6. Plaintiff did not offer a single example of a nondisabled employee receiving sick leave even when the employee’s proposed absence did not qualify for that leave.
  7. If anything, plaintiff’s own experience shows that Lakota neutrally applied the distinction between leave of less than 10 days v. leave of more than 10 days. The distinction mattered because of the levels of approval necessary to obtain that leave.

 

V

It Is the Essential Functions of the Job That Is Being Accommodated and NOT the Disability

  1. In the Sixth Circuit, failure to accommodate cases have their own burden shifting framework. First, employees must prove that they have a disability and are qualified individuals who can perform the essential functions of the job with or without reasonable accommodations. Second, employers must prove that a job duty qualifies as essential and that the accommodation imposes an undue hardship.
  2. The employee has to identify an accommodation and prove its reasonableness.
  3. The text of the ADA makes clear that an accommodation must be work related (emphasis in opinion), meaning that it allows an employee to perform the essential functions of the relevant job.
  4. To qualify as “reasonable,” an accommodation must alleviate a key obstacle that prevents the employee from being able to perform an essential job function.
  5. Courts will find a proposed accommodation unreasonable if an employee can perform the essential job functions and if the employee requests an accommodation for non-work-related reasons.
  6. Even if an employee needs some (emphasis in opinion), accommodation, the employer need not provide the specific accommodation that the employee wants. Instead, the employer has discretion to choose from among alternative (emphasis in opinion), reasonable accommodations if they all will permit the employee to perform the job. So, an employer may pick an accommodation that is less expensive or easier to implement when given the choice between two reasonable accommodations.
  7. It is not obvious that plaintiff’s proposed accommodation (unpaid leave), qualified as a reasonable one. At the time plaintiff requested leave, she continued to be an excellent teacher who did a wonderful job in the classroom. Further, there is little evidence in the record suggests that the lack of a guide dog stood as an obstacle stopping the plaintiff from completing any necessary function of her teaching role. All this said, this particular issue does not need to be decided because Lakota ultimately gave her an accommodation that allowed her to complete the guide-dog training, namely unpaid leave.
  8. Even assuming that plaintiff needed a guide dog to work as a teacher, Lakota’s accommodation was a reasonable one. After all, there is no dispute that unpaid leave allowed the plaintiff to attend the training and bring home the service animal. Also, plaintiff offers no evidence linking paid (emphasis in opinion), leave to the performance of the job. So, Lakota and not the plaintiff has the ultimate discretion to choose between the pay versus the unpaid alternative because both allowed the plaintiff to perform her job.
  9. The fact that plaintiff suffered financial difficulties is of no matter because those difficulties arose outside the work environment and do not go into the reasonableness calculus. Accordingly, those financial difficulties are beyond Lakota’s duties to accommodate under the ADA.
  10. Accepting plaintiff’s view would mean if an employee did not have the financial means to work only part time, the ADA would require the employer to provide full-time pay for part-time work. Requiring an accommodation to be for work-related reasons avoids this result.
  11. The record proves that two different accommodations, paid and unpaid leave, were both (emphasis in opinion), reasonable. So, in that scenario, Lakota has the ultimate discretion to choose the less expensive option even if the more expensive one would not have posed an excessive hardship.
  12. In short, since unpaid leave allowed the plaintiff to obtain her guide dog, Lakota met its obligation to provide a reasonable accommodation, and the ADA requires nothing more.

 

VI

Tumbleson Thoughts/Takeaways

  1. Leave is a reasonable accommodation under the ADA when necessary for training of a service dog. However, that leave doesn’t have to be paid leave, though it could be. It’s going to depend on the policies of the employer, state statutes, and where applicable, a collective bargaining agreement.
  2. The future of McDonnell Douglas as a summary judgment tool is very much a matter of debate, as we discussed here for example.
  3. Muldrow applies to ADA cases.
  4. Lakota went about it the right way by neutrally applying their policy and not having any inconsistency in how we did that with respect to its turning down paid leave.
  5. A plaintiff is not entitled to the accommodation they desire but only to a reasonable accommodation.
  6. The Sixth Circuit clearly comes down on the side of it is the essential job functions that are being accommodated and not the disability. That distinction has importance with respect to service animals as it isn’t always clear the work-related nature of the service animal.
  7. In my opinion, you definitely have a split between the Sixth Circuit (this blog entry), and the 11th Circuit (such as the case we discussed here), with respect to whether it is the essential functions of the job being accommodated or whether it is the disability being accommodated.
  8. Work-related as the standard for an accommodation is a hard one for me to figure out. As a person with a disability, I know the line between work-related and accommodating a disability can be incredibly fine. If a service animal is doing its job, then a person with a disability can do their best on the job with their abilities, which is work-related to me. The 11th Circuit, as mentioned above, seems to be closer to my view. That said, Tumbleson and some other decisions seem to have a much more narrower definition of work-related in mind. If you are in a jurisdiction that focuses on accommodating the essential functions of the job and not the disability, bringing in an expert to explain how the service animal helps the person do the particular job may be a worthwhile thing to do. We will definitely need to keep following the developments in this area.
  9. Even if work-related was not the standard as set forth by the Sixth Circuit, this case would arguably still result in the plaintiff losing her paid leave claim on the grounds that an employer can choose between the accommodation that makes the most sense if both are reasonable ones. Here, looking at the employer’s policy, Ohio state law, and the collective bargaining agreement, all allowed for the employer to choose unpaid leave regardless of any work-related nature.