Employers should evaluate reassignment options and engage in the ADA process rather than relying upon extended unpaid leave as the default accommodation, according to a recent court ruling.

In Dieng v. Orkin, LLC, the United States Court of Appeals for the Fourth Circuit provides an excellent example of what NOT TO DO when an employee requests a reasonable accommodation, at the same time reminding employers of how to meet their ADA obligations.

What’s Was in the Dieng Ruling?

The Fourth Circuit overruled the trial court, which had ruled in favor of the employer, and revived the employee’s ADA failure-to-accommodate claim while leaving intact the dismissal of his separate unlawful termination claim.

The court held that a reasonable jury could find that the employer (Orkin) failed to adequately accommodate the employee (Ibrahima Dieng) after he could no longer perform his job as a pest control technician, even though he repeatedly sought reassignment to less physically demanding work.

The appeals court affirmed dismissal of the wrongful termination claim on procedural grounds because Dieng had not exhausted that theory in his administrative charge filed with the local Office of Human Rights and the EEOC.

For employers, among other things, the decision is a pointed reminder about how to navigate the interactive process and that unpaid leave is not automatically an adequate ADA accommodation where reassignment to a vacant position may be possible.

Dieng’s accommodation request arose after a workplace knee injury left him unable to return to his physically demanding position as a pest control technician, which required kneeling, climbing, crawling, and lifting heavy equipment. His physician cleared him for less physically demanding work, with restrictions including lifting no more than twenty pounds, repetitive stooping, bending, twisting, prolonged sitting, or prolonged standing. Dieng then contacted his branch manager about returning to a light-duty position, and his attorney later asked Orkin to advise when light-duty work became available.

According to the court, however, no one from Orkin reached out or responded to Dieng to discuss his limitations, the type of light-duty work he could perform, or whether such positions were available.

Why the Court’s Analysis Matters to Employers

The Fourth Circuit’s reassignment analysis is especially important for employers and their human resources professionals.

The district court had focused on whether Dieng could perform the essential functions of his former pest control technician job, but the Fourth Circuit said that was the wrong inquiry, where the requested accommodation was reassignment to a light-duty position. In that circumstance, the employee must show that he can perform the essential functions of the desired position, not those of the position he can no longer hold.

The court found evidence that Dieng could perform the customer service representative work he had sought, and concluded that factual disputes remained regarding a sales position he also sought, emphasizing that job descriptions may be relevant but are not always dispositive because courts must consider what the work actually entails.

Importantly, the court stated that “[t]his case requires us to consider whether it is consistent with the ADA for an employer to decline to reassign a disabled employee to an available position he would be able to perform, and instead to keep the employee on indefinite unpaid leave.”  In answering that question, the court rejected Orkin’s reliance on unpaid leave as a reasonable accommodation in such a situation.

While acknowledging that unpaid leave may be reasonable in some circumstances, the court stressed that an accommodation must be effective; an ineffective accommodation, such as leaving an employee in limbo for 16 months, is no accommodation at all.

The court distinguished this situation from Hannah v. United Parcel Service, Inc., where it had ruled that unpaid leave was reasonable because the employee’s disability was temporary and he was expected to return to the same job. By contrast, the evidence in Dieng showed that Orkin was on notice that Dieng’s restrictions were not temporary and that he could not return to his technician position, making indefinite unpaid leave an inadequate substitute for exploring available work.

The Discussion of the Interactive Process Is Equally Significant

The Fourth Circuit described the process as a good-faith, collaborative dialogue intended to help the employer understand the employee’s limitations and identify possible accommodations.

The court found evidence from which a jury could conclude that Orkin did not engage in that process at all: no one discussed Dieng’s restrictions with him, no one contacted his physicians despite receiving medical updates, and there was no evidence that Orkin responded to counsel’s requests for a light-duty return to work.

Most of the shortcomings appear to result from an untrained branch manager interfacing with the employee, rather than with trained human resource professionals or counsel.

The court also noted that issues such as distance from the employee’s prior branch location or whether a vacant position paid less were the very kinds of topics the interactive process is designed to address and the employer should not make assumptions about whether the employee might accept such job conditions.

Takeaways for Employers

The takeaway for employers is not that employers must always reassign an employee or create a new job.

Rather, Dieng underscores that employers should promptly recognize accommodation requests, document a meaningful interactive process, evaluate existing vacancies based on actual essential functions, ask practical questions about location and pay, and avoid letting workers’ compensation negotiations or extended unpaid leave serve as a substitute for ADA analysis.

It is also critical that managers are either well-trained in ADA obligations or required to immediately alert the human resources department when disability issues arise.

Jim Hammerschmidt’s practice includes a range of commercial, corporate, and employment counseling and litigation in Maryland and the District of Columbia. You can reach him at 301-841-0189 or at jrhammerschmidt@lerchearly.com