Don’t “Leave” the Interactive Process Too Soon: Fourth Circuit Reminds Employers to Engage in the Interactive Process Before Jumping to Unpaid Leave

On August 5, 2026, the Fourth Circuit revived an ADA failure-to-accommodate claim where an employee sought reassignment to available light-duty work but remained on unpaid leave for sixteen months. The decision, Dieng v. Orkin, LLC, is an important reminder to employers about engaging in the interactive process under the Americans with Disabilities Act.

Background

The plaintiff, Dieng, successfully worked as an Orkin pest control technician for many years. After a workplace injury required him to take a leave of absence, his provider cleared him to return to work in a light-duty capacity. Dieng notified Orkin that he had been cleared for light-duty work and provided supporting documentation. He shared that he was excited to get back to work and asked if any light-duty positions were available.

Unfortunately, nobody at the company ever reached out to Dieng to discuss his limitations, the type of light-duty work he might be able to perform, or whether such positions were available. Although his supervisor signaled that he would share Dieng’s request with Orkin’s “[r]isk department,” it is unclear if this ever happened. Instead, Orkin kept Dieng on unpaid leave for approximately sixteen months, even while other roles at the company for which Dieng may have been qualified were filled by outside applicants. No one contacted Dieng about those opportunities.

Dieng ultimately resigned from his position and brought suit against Orkin for disability discrimination and failure to accommodate under the Americans with Disabilities Act (ADA).

The Fourth Circuit’s Opinion

The Fourth Circuit found that Orkin’s decision to keep Dieng on “indefinite, unpaid leave,” rather than considering him for an alternative and available position that he may have been able to perform, was inconsistent with its obligations under the ADA.  In doing so, the court highlighted a few important points:

• The Interactive Process Still Matters. The ADA-required interactive process “is a good-faith, collaborative dialogue between the employer and the employee aimed at identifying effective accommodations for an employee’s known limitations—even if such limitations were not initially present at the outset of employment.” Orkin’s failure to engage with Dieng about his physical limitations or his request for light-duty work before leaving him on extended unpaid leave missed the mark.
• The Accommodation Must Be Effective. Although a period of unpaid leave may be reasonable in certain circumstances, the employer in this case was on notice that Dieng’s disability was not temporary, that he could not return to his pest control technician position after the leave, and that he had repeatedly requested reassignment to light-duty work. As the court explained, “a futile or ineffective accommodation is no accommodation at all.”
• Reassignment Can Turn on the Vacant Position, Not the Prior Job. An employee who requests reassignment as an accommodation must show that they can perform the essential duties of the available job they desire, not the job they currently hold. The relevant question was not whether Dieng could perform the essential functions of the prior pest control position, but whether he was qualified for one of the alternative light duty roles he had requested.

Takeaways for Employers

The ADA does not require employers to create new positions, eliminate essential job functions, or automatically provide an employee’s preferred accommodation. However, Orkin underscores the importance of meaningful engagement and consideration of options during the interactive process. 

Please contact a member of the Brooks Pierce Labor & Employment Team for more information.