Look Before You Leave: 4th Circuit Encourages Other ADA Accommodations

The 4th Circuit Court of Appeals recently held that an employee could establish a failure to accommodate claim under the Americans with Disabilities Act, where the employee requested to be moved to other positions but instead the employer placed him on unpaid leave. This case serves as an important reminder that, while leave can be a reasonable accommodation, it may not always be, and an employer must always engage in the interactive process.

Employees with bona fide disabilities under the ADA are entitled to “reasonable accommodations” to enable them to perform the essential functions of their jobs. Employers must engage in the “interactive process” to determine, alongside the employee, what reasonable accommodation can be given. We recently wrote about the growing trend in leave as a reasonable accommodation. However, the 4th Circuit Court of Appeals has reminded us that leave may not always satisfy the ADA.

In Dieng v. Orkin,a pest control technician suffered a knee injury and could no longer perform his job duties. His doctor released him to return to work with various, indefinite physical restrictions. As a result, the employee repeatedly requested reassignment to a less physically demanding position. According to the court, the employer did not respond to the employee’s reassignment requests to discuss his limitations, the type of work he could perform, or whether light-duty positions were available. Instead, the employer continued his unpaid leave, despite the fact that some alternative light-duty positions were open.

The 4th Circuit Court of Appeals reversed the lower court, which had granted summary judgment for the employer on the employee’s failure to accommodate claim, while affirming judgment on his claim of unlawful termination. Two of the court’s discussions serve as great reminders for employers regarding their obligations upon receiving a request for accommodation:

• First, the court addressed the interactive process. It noted that the employee had requested an accommodation of light-duty work and reassignment and that the employee could arguably perform the job duties of the customer service and sales representative positions he sought. In response, no one discussed the specifics of his limitations with him, responded to certain requests for light work, or contacted his physicians. Therefore, the employer did not satisfy its obligation to engage in the interactive process.
• Second, the court addressed leave as an accommodation. It asked “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 acknowledged that unpaid leave may be a reasonable accommodation in some instances, but here it was not — the employee’s restrictions were indefinite and placing him on leave was therefore not effective in enabling him to return to work and perform his job duties.

Just as a reminder to employers of our prior blog on procedural defenses, in this case, the court did not consider the employee’s unlawful termination claim because he did not exhaust his administrative remedies on that particular claim.

• Always remember to engage in the interactive process when presented with requests for accommodation.
• If the employee requests a specific accommodation, consider whether it is reasonable. If it is not, go back to the employee, explain why not, and ask questions: What are your exact limitations? How long will they last? What are other options for accommodations?
• Do not dismiss a request for reassignment without considering it.
• Do not assume that leave is or is not a reasonable accommodation.
• As always, consult with your employment lawyer.