On Wednesday the 4th U.S. Circuit Court of Appeals revived a failure-to-accommodate claim against Orkin, and if you run programs in North Carolina, South Carolina, Virginia, Maryland or West Virginia, that is your circuit. HR Dive reported the decision Friday.
The facts are ordinary, which is exactly why the ruling matters. A pest control technician injured his knee on the job. His doctor said he could not perform the technician role but could handle something less physically demanding. He told Orkin. A manager told him no light-duty positions were available. According to the reporting, he got no further follow-up, sat on unpaid leave for 16 months, and resigned.
Every operator in health and human services has had some version of that conversation. Most of us have said that sentence.
What the court actually said
The district court had granted Orkin summary judgment because no accommodation would have let the employee perform the essential functions of his own job. The 4th Circuit said that analysis stopped one step too early.
Whether an employee can perform the essential functions of a different, lower position is a separate question under the ADA. The employee here identified two roles he believed he could do, customer service and sales. Per the court, the record supported him, and his own former manager acknowledged he could have at least performed the customer service role. That was enough to send the claim to a jury.
The court also had something pointed to say about the leave itself. Open-ended unpaid leave was not a reasonable accommodation on these facts, and the court likened it to “professional purgatory.” And it faulted the employer for not engaging in a good-faith interactive process, noting the manager said he never received a response from HR about the reassignment request and never followed up.
None of this makes reassignment automatic. As HR Dive notes, citing EEOC enforcement guidance, reassignment remains the accommodation of last resort: the employee has to already be qualified for the new role, and the employer is not obligated to help them become qualified. The role generally has to be vacant and equivalent in pay and status, and only where no equivalent vacancy exists does a vacant lower-level position come into play.
The obligation is not to invent a job. It is to look, honestly, and to be able to show that you looked.
Why this lands hard on health and human services
Our sector is built on roles with genuinely physical essential functions. Direct support professionals do transfers and lifts. Residential staff respond to crises. Nursing and ABA staff are on their feet through a full shift. Knee and back injuries are not edge cases here; they are a predictable cost of the work.
Which means “we don't have light duty” gets said in this sector constantly, and it is usually true about the clinical role. The problem is that it is often never tested against the rest of the organization. Most HHS providers carry open non-clinical vacancies at any given moment: scheduling, intake, billing, care coordination, quality assurance, training, front desk. A statement about one department is being used to answer a question about the whole employer.
There is a second exposure for multi-state operators. This is a 4th Circuit ruling. Other circuits have landed differently on adjacent questions, including an 8th Circuit decision finding a particular reassignment request too difficult to grant, and a 6th Circuit decision this past May treating unpaid leave as a suitable accommodation on its own facts. A single national handbook written to the most employer-friendly circuit is a liability in the strictest one. If you operate across state lines, your accommodation procedure needs to hold up in the toughest jurisdiction you touch.
Four things to change this month
1. Retire the sentence. “No light duty available” ends a conversation that the law expects to continue. Train supervisors to route every request to a named owner instead of answering it on the spot. A supervisor is rarely in a position to know what is vacant across the organization, and this ruling turns that guess into evidence.
2. Run a real vacancy review, in writing. When an employee cannot return to their own role, pull the current requisition list. Check equivalent positions first, then lower-level ones. Write down what you reviewed, what the employee was and was not qualified for, and why. A one-page memo per request is cheap. Reconstructing it two years later from memory is not.
3. Put a clock and an owner on the interactive process. The detail that hurt Orkin most was silence. Every accommodation request should have a named HR owner, a response deadline, and a documented close-out, even when the answer is no. Our HR compliance checklist covers where these gaps usually sit.
4. Stop using indefinite unpaid leave as a parking space. Leave with no end date and no follow-up is the pattern the court described as purgatory. If leave is the accommodation, it needs a review date and a scheduled conversation attached to it. If you want a structured read on where your process actually stands, that is what the Workforce Assessment maps, and audit readiness covers the documentation side.
The uncomfortable part
Most of the organizations that lose these cases were not acting in bad faith. They were busy. A supervisor gave a fast answer, HR never picked it up, and an employee sat on leave until the relationship ended on its own. That is not malice. It is a process gap, and a process gap is the one kind of exposure you can fix on a Tuesday.
We keep an EEOC administrative law judge on our counsel bench and SHRM-certified CHRO and PHR practitioners on staff, which is the combination this particular problem calls for: someone who has seen how these records get read, and someone who can rebuild the procedure that produces them.
Want your accommodation process reviewed before it is tested?
We help health and human services organizations rebuild the interactive process, the vacancy review, and the documentation behind both. Scoped and priced before the work begins.
Book a Rapid ConsultSources: HR Dive, “ADA may require reassignment despite worker's inability to perform essential functions, 4th Circuit says,” by Ryan Golden, published August 7, 2026, reporting on Dieng v. Orkin, LLC (4th Cir.), and summarizing U.S. Equal Employment Opportunity Commission enforcement guidance on reasonable accommodation and undue hardship, along with prior 8th Circuit and 6th Circuit decisions referenced in that report. This is general information about a published court decision, not legal advice, and outcomes turn on individual facts and jurisdiction. Photo: Pexels, free license, TWF badge added.
