Employment Law Update: Unpaid Leave is Not Always a Reasonable Accommodation Under the ADA
Date: August 13, 2026
Mr. Dieng, a pest control technician for Orkin, suffered an injury that left him with a permanent disability. After a period of recovery, his physician cleared him to return to work in a limited capacity, as he could no longer perform all the physical demands of the technician position. Mr. Dieng submitted this medical documentation to Orkin.
Mr. Dieng reached out to his branch manager multiple times about returning to a less physically demanding position. He identified specific alternative positions he believed he could perform based on his skillset. His manager only said he was not aware of any available positions, and Orkin otherwise only minimally engaged with Mr. Dieng or did not respond. Mr. Dieng remained on unpaid leave for sixteen months until he resigned.
Dieng sued Orkin under the ADA, alleging that Orkin failed to reasonably accommodate his disability. The district court ruled in favor of Orkin, concluding that placing Dieng on indefinite, unpaid leave was a reasonable accommodation. The Fourth Circuit disagreed.
First, the Court of Appeals emphasized that a reasonable accommodation must be effective. Placing Mr. Dieng on unpaid leave until he could return to his technician role was not effective because his disability was permanent—he would never be able to return to that position. Mr. Dieng’s case was distinct from those situations where unpaid leave may be a reasonable accommodation, such as when an employee has a temporary disability and is expected to return to full duty.
The Court also concluded that, when an employee can no longer perform the essential functions of their position due to a disability, the ADA requires the employer to consider whether the employee can be reassigned to a vacant position without creating an undue burden on the employer.
Lastly, the Court addressed the interactive process. According to the record, no one at Orkin discussed Mr. Dieng’s limitations with him or explored whether reassignment was feasible. The Court noted that a reasonable accommodation was possible, and a jury could reasonably conclude that Orkin failed to engage in the interactive process.
Key Takeaways for Employers
This decision reinforces several practical obligations for employers:
- Unpaid leave is not always the answer. While it can be a reasonable accommodation, employers must evaluate each situation individually and determine whether an accommodation is likely to be effective given the circumstances. Indefinite, unpaid leave is not appropriate for permanent conditions.
- Employers should consider reassignment to available vacancies when an employee’s current role is no longer feasible. Employers are not required to create a new position, but the ADA requires them to assess options that are available.
- Employers must meaningfully engage in the interactive process every time. This requires meaningful conversations about the employee’s limitations and what adjustments might work. The interactive process is ongoing, and employers cannot simply implement an accommodation and move on.
Employers are welcome to reach out to Whiteford’s Labor and Employment Law attorneys with any questions or for assistance with compliance.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.