Why The ADA May Require Reassignment Instead Of Leave
Some employers have a simple solution when an employee needs a disability accommodation: keep the employee off the payroll instead. No termination. No reassignment. Just unpaid leave that stretches from weeks into months while open jobs come and go. That strategy may seem easier for an employer, but Americans with Disabilities Act (“ADA”) does not always permit it. In fact, it might support a claim for disability discrimination
That was the fight in Dieng v. Orkin, LLC, 2026 U.S. App. LEXIS 23480 (4th Cir. 2025). After suffering work-related injuries, Mamadou Dieng repeatedly sought a disability accommodation that would allow him to return to work. According to the opinion, he identified vacant positions he believed he could perform and continued asking to return instead of remaining on unpaid leave. Orkin disagreed that reassignment was required and kept him on leave while the dispute continued. The district court granted summary judgment for the employer, but the United States Court of Appeals for the Fourth Circuit revived significant portions of the case. The Fourth Circuit held that an employer cannot simply decline to reassign a qualified employee to an available position and instead keep that employee on indefinite unpaid leave if reassignment may be a reasonable disability accommodation. The Court also addressed whether Dieng was required to file a new EEOC charge after his employment ended while his earlier administrative charge remained pending.
Let’s jump in and see what we can learn from Dieng.
Legal Takeaways
- An employer may violate the ADA by declining to reassign a qualified employee to an available position and instead keeping the employee on indefinite unpaid leave.
- Whether reassignment was a reasonable disability accommodation often depends on disputed facts that cannot be resolved at summary judgment.
- An employee who is fired while an earlier administrative charge is pending may not necessarily have to file a new EEOC charge before pursuing certain later claims, depending on the circumstances addressed by the opinion.
Can My Employer Keep Me On Leave Instead Of Reassigning Me To An Open Job?
Usually, no. The ADA requires an employer to provide a reasonable accommodation unless doing so would impose an undue hardship. One reasonable accommodation expressly recognized by the statute is “reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B). To prove a failure-to-accommodate claim, an employee must show “(1) that he was disabled; (2) that [the employer] was on notice of his disability; (3) that he was able to perform the essential functions of his position (or his desired position) with or without a reasonable accommodation; and (4) that [the employer] failed to make such an accommodation.” Dieng, 2026 U.S. App. LEXIS 23480, at *13-14.
The Fourth Circuit then addressed the question at the heart of the case: “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.” The Court answered with a direct holding: “We hold that it is not.” Dieng, 2026 U.S. App. LEXIS 23480, at *13.
That holding mattered because Orkin did not argue that it created a new position for Dieng. The dispute was whether vacant customer service and sales positions existed that he could perform within his medical restrictions. The record contained evidence that Dieng repeatedly requested light-duty work, his physician cleared him for less physically demanding work, and Orkin later filled multiple customer service and sales positions without contacting him. Hunter even testified he knew of no reason Dieng could not perform a customer service position. Dieng, 2026 U.S. App. LEXIS 23480, at *5-10, *15-17.
Orkin argued that indefinite unpaid leave was a reasonable accommodation. The Fourth Circuit disagreed that the record entitled Orkin to judgment as a matter of law. Viewing the evidence in the light most favorable to Dieng, the Court held that genuine disputes of material fact existed as to whether he could perform the essential functions of the positions he requested and whether Orkin failed to provide a reasonable accommodation by refusing to reassign him. Dieng, 2026 U.S. App. LEXIS 23480, at *14-24. Because those disputes belonged to a jury—not a judge—the Fourth Circuit vacated the district court’s grant of summary judgment on the failure-to-accommodate claim and remanded the case for trial.
Practical Tip: If your employer leaves you on unpaid leave after you request a disability accommodation, ask whether there are vacant positions you can perform within your medical restrictions. If the employer ignores those requests while filling open jobs, those facts may become powerful evidence that reassignment—not leave—was the reasonable accommodation.
Best Workplace ADA Accommodation Attorney Blogs on Point:
Can My Employer Ignore My Requests For A Disability Accommodation?
No. An employer does not satisfy the ADA by simply receiving a request for a disability accommodation and doing nothing. Once an employee communicates a disability and requests an accommodation, the employer has a duty to engage in the interactive process—a good-faith dialogue designed to identify an effective accommodation. The Fourth Circuit held that the interactive process “giv[es] employers and employees a chance to work together to figure out what accommodation, if any, would be reasonable and not unduly burdensome.” Dieng, 2026 U.S. App. LEXIS 23480, at *12 (quoting Tarquinio v. Johns Hopkins Univ. Applied Physics Lab). The Court further held that an employer’s duty “is triggered when an employee communicates [his] disability and desire for an accommodation—even if the employee fails to identify a specific, reasonable accommodation.” Id. at *22 (quoting Jacobs v. N.C. Admin. Offs. of the Cts.).
According to the record, Dieng did far more than simply ask once. He texted his branch manager after his physician released him to light-duty work. When that message went unanswered, he followed up by email. His manager responded only that someone from the risk department would contact him. No one ever did. Dieng later underwent a functional capacity evaluation, provided the results to Orkin, retained counsel, had his attorney send written requests asking to be notified when light-duty work became available, and personally followed up again. Even then, Hunter responded only that he was unaware of any light-duty positions. Dieng, 2026 U.S. App. LEXIS 23480, at *5-10.
The employer’s defense was that it had reasonably accommodated Dieng by allowing him to remain on unpaid leave. The Fourth Circuit rejected that reasoning on this record. The Court pointed to evidence that no one at Orkin attempted to discuss Dieng’s restrictions, contacted his physicians, responded to his attorney’s requests, or explored possible accommodations. Holding that a reasonable jury could conclude Orkin failed to engage in the interactive process in good faith, the Court wrote that “a reasonable jury could readily conclude that Orkin ignored Dieng’s repeated requests to return to work in a light-duty position rather than engaging in the interactive process.” Dieng, 2026 U.S. App. LEXIS 23480, at *22-24.
The Fourth Circuit did not decide that Orkin violated the ADA. It decided that the evidence was strong enough for a jury to decide. Because reasonable jurors could conclude that Orkin ignored repeated accommodation requests instead of engaging in the interactive process required by the ADA, the Court vacated summary judgment on the failure-to-accommodate claim and remanded the case for trial.
Practical Tip: If your employer stops responding after you request a disability accommodation, continue making your requests in writing and keep copies of every communication. A timeline showing repeated requests and little or no response can become compelling evidence that the employer failed to engage in the interactive process required by the ADA.
Best ADA Lawyer Blogs on Point:
Do I Have To File A New EEOC Charge If I’m Fired While My First One Is Pending?
Usually, yes. If you are fired after filing your first administrative charge, that charge cannot describe a termination that had not happened yet. Depending on the circumstances, you may need to amend your pending charge or file a new one before you can bring a wrongful termination claim in court.
That procedural rule cost Ibrahima Dieng one of his claims. Before filing an ADA lawsuit, an employee must first exhaust administrative remedies. The United States Court of Appeals for the Fourth Circuit held that “[a] plaintiff’s claims in his judicial complaint must be reasonably related to the claims alleged in his administrative charge or must be expected to follow from a reasonable administrative investigation of the claims alleged in the charge.” Dieng v. Orkin, LLC, 2026 U.S. App. LEXIS 23480, at *25-26.
Dieng’s administrative charges alleged that Orkin failed to provide him with a disability accommodation. They did not allege that Orkin unlawfully terminated him because of his disability. They could not. Both his original charge and his amended charge were filed before he resigned. The Fourth Circuit held that “[n]either Dieng’s original charge nor his amended charge could thus allege unlawful termination.” Dieng, 2026 U.S. App. LEXIS 23480, at *26. Because his termination claim was not included in those charges and was not reasonably expected to grow out of the administrative investigation, the Court held that he failed to exhaust his administrative remedies. The result was harsh but straightforward: the Court affirmed summary judgment on his wrongful termination claim without ever deciding whether a jury would have believed it.
That is what makes this part of the opinion so frustrating. The Fourth Circuit acknowledged that keeping an employee on a lengthy, indefinite unpaid leave “may support a claim of constructive discharge.” Dieng, 2026 U.S. App. LEXIS 23480, at *25. In other words, the Court recognized that Dieng had a legal theory worth discussing. But because the procedural requirements were not met, the Court never answered whether Orkin had, in fact, constructively discharged him. It affirmed dismissal of that claim while remanding the separate failure-to-accommodate claim for a jury to decide.
Cases are won on facts, but they can be lost on procedure. That is why having an experienced employment lawyer from the beginning matters. Employment law is full of deadlines, administrative requirements, and procedural rules that can quietly eliminate a claim before a jury ever hears the evidence. The best attorney is not just someone who knows how to prove discrimination. The best lawyer knows how to preserve every claim so the fight is decided on the facts instead of a procedural technicality.
Practical Tip: If your employer fires you or takes another serious adverse action after you have already filed an administrative charge, tell your employment lawyer immediately. A new act of discrimination or retaliation often requires additional procedural steps, and missing them can keep even a strong claim from ever reaching a jury.
Best Wrongful Termination Law Firm Blogs on Point:
When Should I Call An Employment Lawyer About Disability Discrimination?
The answer is earlier than most employees think. Many people wait until they have been fired. Others try to handle accommodation requests themselves, assuming they can always hire a lawyer later if things get worse. Dieng shows why that can be a costly mistake. One claim survived because the evidence created genuine disputes for a jury. Another claim never reached a jury because of a procedural requirement. Good cases are not won by strong facts alone. They also require careful strategy from the very beginning.
That is why employees across the country turn to Spitz, The Employee’s Law Firm. As one of the largest law firms in the United States dedicated exclusively to protecting employee rights, Spitz has the resources, experience, and trial record to take on employers of every size. Every case begins with a free consultation, and our No Fee Guarantee means you do not pay attorney fees unless we recover for you. We know that most employees have never been through the legal system before. Our job is not just to fight discrimination, wrongful termination, disability discrimination, and disability accommodation cases. It is to guide you through every step, preserve every viable claim, avoid procedural pitfalls, and build the strongest case possible. If you believe your employer violated your rights, don’t wait until an avoidable mistake limits your options. Contact Spitz, The Employee’s Law Firm today and let us help you protect your future.
I intentionally tied this section back to Dieng rather than making it a generic advertisement. The lesson is concrete: one claim was revived because the evidence was there; another was lost because of procedure. That makes the call to action feel earned rather than sales-driven.
Frequently Asked Questions
What Is A Reasonable Accommodation Under The ADA? A reasonable accommodation is a workplace adjustment that enables a qualified employee with a disability to perform the essential functions of the job, absent an undue hardship. Depending on the circumstances, it may include modified duties, schedule changes, assistive devices, or reassignment to a vacant position.
When Does The ADA Require Reassignment To A Vacant Position? Reassignment may be required when a qualified employee can no longer perform the current position because of a disability but can perform the essential functions of a vacant position with or without a reasonable accommodation. Whether reassignment is required depends on the facts of each case.
What Are The Elements Of An ADA Failure-To-Accommodate Claim? To establish a failure-to-accommodate claim, an employee generally must prove: (1) a disability; (2) the employer knew of the disability; (3) the employee could perform the essential functions of the position sought with or without a reasonable accommodation; and (4) the employer failed to provide a reasonable accommodation.
What Are Essential Job Functions Under The ADA? Essential functions are the fundamental duties of a position, not every task listed in a job description. Courts examine the actual work performed, the employer’s judgment, written job descriptions, and other evidence to determine whether a function is truly essential.
Can An Employer Choose A Different Accommodation Than The One Requested? Generally, yes. However, the accommodation selected must be effective. An ineffective accommodation is not a reasonable accommodation under the ADA.
Employment Lawyer Disclaimer
This employment law, disability discrimination, disability accommodation, wrongful termination, and employee rights blog is provided for general informational purposes only and should not be considered legal advice. Every employee, employer, workplace, and claim is different, and the outcome of any disability discrimination, wrongful termination, or employment law matter depends on its specific facts and the applicable law. Reading this blog does not create an attorney-client relationship with Spitz, The Employee’s Law Firm or any of its attorneys or lawyers. No promises or guarantees are being made about the outcome of any claim or lawsuit. If you believe you have been wrongfully fired, denied a disability accommodation, or experienced discrimination in the workplace, you should consult with a qualified employment lawyer or attorney to obtain legal advice tailored to your individual circumstances. This blog is a legal advertisement.