The Americans with Disabilities Act (ADA) imposes an affirmative duty on employers to provide reasonable accommodation to qualified individuals with a disability. But what happens when a disability renders the employee unable to perform the essential functions of his or her regular job? Courts have held that in this circumstance, an indefinite leave of absence may constitute reasonable accommodation. However, in the case of Dieng v. Orkin, LLC (4th Cir. 8/5/26), the United States Court of Appeals for the Fourth Circuit recently held that indefinite leave is not an effective accommodation IF the employee can be reassigned to another available job without causing undue burden to the employer.
Ibrahima Dieng was employed by Orkin as a pest control technician. As a result of a job-related injury, Dieng was placed on a medical leave of absence while he underwent treatment. Dieng ultimately informed Orkin that due to his disability he was unable to return to his technician job. When his doctor later cleared Dieng to perform less physically demanding work, Dieng requested Orkin to transfer him to a light duty job. However, Dieng remained on leave for some months without being offered an alternate position which would have satisfied his work restrictions. He eventually resigned from employment with Orkin.
Dieng subsequently filed suit in Federal District Court against Orkin on various claims under the ADA, including failure to accommodate a disability. The court granted Orkin’s motion for summary judgment as to this claim, finding that Orkin had reasonably accommodated Dieng’s disability by placing him on indefinite leave. Dieng appealed this decision to the Fourth Circuit Court of Appeals.
The Fourth Circuit noted that even though an employer is not generally obligated to provide the specific accommodation requested by the employee, an accommodation that the employer ultimately selects must be “effective.” Here, Orkin placed Dieng on indefinite leave because he was unable to return to his regular technician job. Yet the Court rejected this accommodation as ineffective on the grounds that Dieng’s request for transfer to light duty was “possible” based on evidence viewed in a light most favorable to Dieng. Specifically, the Court credited Dieng’s self-serving testimony that, despite his physical disability, he could have performed the essential functions of certain sales representative or customer service positions which were available. Under these circumstances, the Court found issues of fact regarding whether Orkin should have offered these positions to Dieng as an accommodation rather than—in the Court’s words—“maintaining Dieng in professional purgatory” by placing him on indefinite leave. The Court therefore reversed summary judgment for Orkin on Dieng’s failure to accommodate claim and ordered that the case be remanded to the District Court for trial.
The Fourth Circuit thus now makes clear that “where an employee can no longer remain in his current position because of a disability, … the ADA requires the employer to determine whether the employee can work in a different position without creating an undue burden for the employer.” Of course, employers are not obligated to create light duty jobs or to remove non-disabled employees from existing job positions in order to accommodate a disabled employee. However, when alternate jobs are available, an employer should review those positions carefully to determine whether a disabled employee could perform them with or without reasonable accommodation.
Considering requests for job reassignment involves a careful review of essential job functions, the employee’s particular work restrictions and job qualifications, fitness for duty examinations, and other aspects of the interactive process. The employment lawyers at Poyner Spruill closely monitor developments in the law regarding ADA accommodation and can assist employers in this process.
