Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—4th Cir.: Court revives accommodation claim of Orkin pest control tech placed on unpaid leave for 16 months, (Aug 6, 2026)

By Kathleen Kapusta, J.D.

“This case requires us to consider 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.”

Vacating summary judgment on the ADA failure-to-accommodate claim of an Orkin pest control technician who, as a result of a knee injury, could no longer perform his job’s physically demanding duties, and who repeatedly asked to be reassigned to a less demanding position but was instead placed on indefinite leave for 16 months before he resigned, the Fourth Circuit explained that while “keeping an employee in indefinite unpaid leave may be a reasonable accommodation under certain circumstances, it was not here” and the evidence indicated that a reasonable accommodation was possible. The court affirmed summary judgment, however, against his unlawful termination claim finding he failed to exhaust those administrative remedies. Judge Quattlebaum concurred in part, concurred in the judgment in part, and dissented in part (Dieng v. Orkin, LLC, No. 25-1221 (4th Cir. Aug. 5, 2026)).

In his role as pest control technician, the employee was required to kneel, climb, crawl, and lift heavy equipment often exceeding 50 pounds. He also sold pest control services to customers and was eligible to earn commissions from those sales.

Injury. In February 2016, he slipped and injured his right knee while servicing a building. He was cleared to return to work in July but restricted to lifting up to 20 pounds and directed to avoid “repetitive stopping, bending, twisting, prolonged sitting or standing.”

The following month, the employee texted his branch manager that he had been cleared to return to work in a light-duty position. When his manager did not respond, the employee emailed him four days later. In response, the manager stated that he would ask someone in the risk department to contact the employee. The manager later stated that he could not recall if he ever contacted the risk department.

In October, the employee’s attorney advised Orkin that the employee, who was still on unpaid leave, was eager to return to work and asked to be advised in writing when light duty became available. The following week, the attorney again told Orkin that the employee had been cleared to engage in light-duty work.

Resignation. Through discovery, the employee identified two light-duty positions he claimed he could have performed—customer service and sales representative roles. His branch manager acknowledged that he would have been able to perform the customer service position. After remaining on unpaid leave for 16 months, the employee resigned.

Lower court proceedings. The employee then sued under the ADA, alleging Orkin failed to accommodate his disability and unlawfully terminated him. Granting summary judgment to Orkin, the district court found that the company accommodated his disability by placing him on indefinite unpaid leave and that he voluntarily resigned.

Failure to accommodate. On appeal, the Fourth Circuit observed that where “a disabled employee seeks an accommodation of reassignment, the employee must be able to show that he can perform the essential functions of the position he desires, not the essential functions of the job he holds.” And here, the court found record evidence supported the conclusion the employee could have performed the essential functions of the customer service position. His manager testified that he could think of no reason the employee would not have been a suitable customer service representative and Orkin did not dispute this fact.

Sales positions. As to the sales position, the court found material fact disputes as to whether the employee could have performed the job’s essential functions. Orkin pointed to job descriptions to argue that sales representatives are often called upon to carry out “heavy work,” including frequent heavy lifting. The employee, on the other hand, submitted a sworn declaration, based on his personal knowledge of the sales role and his firsthand experience, stating that “[s]ales duties were far less physically rigorous and only occasionally required carrying heavy equipment, a difference and decrease in frequency that would have made the physical requirements more manageable for me.”

In addition, his manager testified that, while some Orkin sales representatives were “expected to get up inside the attics [and] get into crawl spaces,” others were primarily responsible for “building long-term relationships with clients” and another Orkin employee testified that the frequency with which a salesperson was expected to carry heavy equipment depended on the skill of the salesperson and “on the scope of the job.”

While Judge Quattlebaum, in his partial dissent, argued that the employee’s statements in his sworn declaration could not create a genuine issue of material fact, the court noted that, pursuant to Fourth Circuit caselaw, “[s]elf-serving affidavits offered by the non-movant can be used as evidence to defeat summary judgment,... when they are based on personal knowledge or firsthand experience.”

Reasonable accommodation. Turning to the district court’s conclusion that Orkin was not required to provide the employee’s requested accommodation of light-duty work and that Orkin provided him with the reasonable accommodation of unpaid leave for 16 months, the appeals court noted that an “accommodation that an employer ultimately selects must be effective.” Though Orkin relied on the Fourth Circuit’s 2023 decision in Hannah v. United Parcel Service, Inc., to argue that indefinite unpaid leave can be a reasonable accommodation, in that case, said the court here, the plaintiff’s disability was temporary and he was expected to return to full-time employment in the same position, neither of which was the case here.

Interactive process. There was also evidence, said the court, that Orkin did not engage in the interactive process, let alone engage in it in good faith. No one at Orkin made any attempt to speak with the employee about his physical limitations or his request for light-duty work or made any effort to speak with his physicians regarding his disabling condition or his need for light-duty work. Nor was there any evidence anyone ever responded to communications from the employee’s attorney requesting that he be returned to a light-duty position.

Further, the court noted evidence that light-duty positions came open at Orkin following the employee’s request for reassignment. While Orkin argued that he could not perform the essential functions of several of the positions because they were located some distance away from his branch location, the court pointed out that he never suggested his disability required that he be reassigned to a location near his home and Orkin did not ask whether he had any such restrictions. As to Orkin’s assertion that some of the vacant positions paid less than the employee’s prior position, he claimed he would have been willing to accept a lesser-paying job. “Regardless,” said the court, “these are the types of issues that the interactive process is designed to address.”

Accommodation of last resort. Finally, the court rejected the district court’s reliance on the Fourth Circuit’s 2020 Elledge v. Lowe’s Home Centers, LLC, decision in reasoning that Orkin was under no obligation to reassign the employee to a light-duty position because “reassignment is an accommodation of ‘last resort.’” While the court agreed that it is generally preferable for an employer to provide an accommodation that allows a disabled employee to remain in his current position, it explained that where an employee can no longer remain in that position because of a disability, “the ADA requires the employer to determine whether the employee can work in a different position without creating an undue burden for the employer.”

Because the parties did not dispute that the employee was not able to perform the essential functions of his prior position due to his disability, the only question, said the court, was whether Orkin was able to reassign him to a different position without an undue burden. Finding triable fact issues as to whether Orkin failed to accommodate the employee’s disability, the court vacated summary judgment against his failure-to-accommodate claim.

Unlawful termination. Affirming summary judgment against his unlawful termination claim, the court noted that the employee filed two administrative charges alleging failure to accommodate before he resigned and thus neither charge could allege unlawful termination. Thus, that claim was not administratively exhausted.

Partial concurrence and dissent. Judge Quattlebaum, concurring in part, concurring in the judgment in part, and dissenting in part, agreed with the majority that Orkin was entitled to summary judgment on the employee’s wrongful termination claim. As to his failure-to-accommodate claim, Judge Quattlebaum agreed that the district court erred by granting summary judgment on the entire claim but disagreed about the scope of the remaining fact disputes.

As to the sales position, he agreed that there was no genuine dispute of material fact suggesting Orkin should have given the employee the position. Regarding the customer service position, which he agreed was a light-duty job, he would remand the case only for consideration of his failure-to-accommodate claim concerning customer service positions in three branches that were within an hour’s drive of his old workplace and that were filled in a specified two-month period of time. “But even on that narrow issue,” he wrote, “the district court should consider on remand that, in our circuit, ‘reassignment is a disfavored accommodation that employers are generally under no obligation to offer.’”

The case is No. 25-1221.

Judge: Berner, N.

Attorneys: Richard Allen Salzman (Heller, Huron, Chertkof & Salzman) for Ibrahima Dieng. Charles Joseph Kresslein (Jackson Lewis) for Orkin, LLC.

Companies: Orkin, LLC

MainStory: TopStory DisabilityDiscrimination Discrimination Procedure MarylandNews NorthCarolinaNews SouthCarolinaNews VirginiaNews WestVirginiaNews GCNNews