The 4th U.S. Circuit Court of Appeals has partially reversed a lower court’s decision, ruling that Orkin may have failed to adequately consider reassignment as a reasonable accommodation for a disabled employee, challenging the company’s administration of this "accommodation of last resort." This ruling highlights the persistent complexities employers face in navigating the Americans with Disabilities Act (ADA) and underscores the critical importance of a robust interactive process. The decision, published on August 7, 2026, by HR Dive, centers on a former pest control technician’s disability discrimination lawsuit against Orkin, a case that could have significant implications for how employers handle accommodation requests involving reassignment to vacant positions.
The Nuances of Reassignment as an ADA Accommodation
Under the ADA, employers are obligated to provide reasonable accommodations to qualified individuals with disabilities, enabling them to perform the essential functions of their jobs. When an employee can no longer perform their current role due to a disability, reassignment to a vacant position is considered an accommodation of last resort. This means it is typically only mandated when other effective accommodations—such as modified work schedules, assistive devices, or job restructuring—would either not enable the employee to perform their essential job functions or would impose an undue hardship on the employer.
The U.S. Equal Employment Opportunity Commission (EEOC) has provided detailed guidance on this matter. To qualify for reassignment, an employee must first be deemed qualified for the vacant position. Crucially, the EEOC guidance states that employers are not obligated to assist individuals in becoming qualified for a new role. Generally, the reassignment must be to a vacant position that is equivalent in terms of pay, status, and other relevant factors. If no such equivalent vacant position exists, the employee may be reassigned to a lower-level vacant position, provided one is available.
A Closer Look at the Dieng Case
The case at the heart of this appeal, often referred to as the Dieng case, involved an employee who, due to a disability, could no longer perform the essential functions of his pest control technician role. The district court had initially granted summary judgment in favor of Orkin, concluding that no reasonable accommodation would have allowed the plaintiff to continue in his existing position. However, the 4th Circuit Court of Appeals found that this assessment was incomplete.
The appellate court pointed out that the district court failed to adequately consider whether the employee could have performed the essential functions of a different, lower-level position within Orkin. The plaintiff had identified two specific roles he believed he could perform despite his disability: a customer service position and a sales representative position. The 4th Circuit determined that the evidence presented supported the plaintiff’s assertion that he could have performed the customer service role. Furthermore, the court noted that a former manager had acknowledged the plaintiff’s potential capability in at least the customer service position. While there might have been a factual dispute regarding his fitness for the sales representative role, the 4th Circuit indicated that the plaintiff had sufficiently met his burden under the ADA regarding his potential to perform these alternative roles.
Orkin’s Defense and the Court’s Counterarguments
Orkin had argued that it was not obligated to provide the specific accommodations requested by the plaintiff and that placing him on indefinite unpaid leave was a reasonable course of action, especially given an ongoing dispute concerning his workers’ compensation claims. However, the 4th Circuit disagreed with Orkin’s position on both counts.
A significant point of contention was Orkin’s alleged failure to engage in the interactive process. The ADA mandates that employers and employees engage in a good-faith dialogue to identify and implement appropriate reasonable accommodations. In this case, the plaintiff had repeatedly requested to discuss the possibility of light-duty reassignment. According to court documents, the plaintiff’s former manager indicated that he "never received a response" from Orkin’s HR department regarding these requests and that the company "never followed up."
The 4th Circuit found this lack of engagement particularly problematic. The court stated, "On this record, a reasonable jury could readily conclude that Orkin ignored [the plaintiff’s] repeated requests to return to work in a light-duty position rather than engaging in the interactive process." This finding suggests that Orkin’s actions may have fallen short of the legally required collaborative effort to find a solution.
Orkin has declined to comment on the specifics of the case following the appellate court’s decision.
Broader Implications for ADA Compliance
The Dieng decision arrives at a time when courts have presented a somewhat varied landscape regarding reassignment and unpaid leave under the ADA. The 4th Circuit’s stance on reassignment as a critical component of the interactive process aligns with the spirit of the ADA, emphasizing that employers cannot simply dismiss such requests without thorough consideration and good-faith engagement.
This ruling offers a counterpoint to certain past judicial interpretations. For instance, in 2022, the 8th U.S. Circuit Court of Appeals ruled that an employee’s request for reassignment was "too difficult and time-consuming to grant." This decision suggested a potential limit on how far employers might be compelled to go in facilitating reassignment. Conversely, a 2021 decision from the 4th Circuit itself described reassignment as the "last among equals" among ADA accommodations, cautioning that employers should not unilaterally reassign employees if other reasonable accommodations are available. The Dieng case appears to reinforce the idea that reassignment, while a last resort, must still be given serious and diligent consideration when other accommodations are not feasible.
The issue of unpaid leave as a reasonable accommodation also remains a subject of judicial interpretation. In May of 2026, the 6th U.S. Circuit Court of Appeals upheld a school district’s decision to place a teacher on unpaid leave for guide dog training rather than utilizing paid sick leave. The court reasoned that unpaid leave was a suitable accommodation, even if it wasn’t the plaintiff’s preferred option. This contrasts with situations where indefinite unpaid leave might be viewed as a failure to accommodate, particularly if alternative employment within the company was a viable option that was not adequately explored.
The Evolving Landscape of Workplace Accommodations
The ADA, enacted in 1990, has undergone decades of judicial interpretation, leading to a complex body of case law that employers must navigate. The requirement for employers to provide reasonable accommodations is a cornerstone of the legislation, aimed at ensuring equal employment opportunities for individuals with disabilities. However, the practical application of these requirements, especially concerning reassignment, has often been a source of contention.
The EEOC’s enforcement guidance, while influential, is not binding law. Courts ultimately interpret the ADA based on the specific facts and circumstances of each case. The Dieng ruling underscores that a mechanical application of the "last resort" principle is insufficient. Employers must demonstrate a genuine effort to explore all viable options, including reassignment, and actively participate in the interactive process. This involves open communication, a willingness to consider alternative roles, and a commitment to finding solutions that enable disabled employees to remain in the workforce.
The implications of the Dieng decision extend beyond Orkin. It serves as a reminder for all employers that overlooking reassignment as a potential accommodation, or failing to engage in a thorough interactive process, can lead to costly litigation and adverse rulings. As the nature of work evolves and our understanding of disabilities deepens, the legal framework surrounding workplace accommodations continues to adapt. Employers who proactively review and refine their accommodation policies and practices, ensuring they align with current legal standards and best practices, will be better positioned to mitigate risks and foster inclusive work environments. The emphasis on a robust interactive process, as highlighted by the 4th Circuit, is paramount in demonstrating a commitment to disability inclusion and compliance with the ADA.
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