Under the Americans with Disabilities Act, both unpaid leave and reassignment to a vacant position can be forms of required accommodations. Typically, an employer can select an accommodation that is not the one preferred by the employee if it is effective. According to a new decision from the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia), an employer cannot keep a disabled employee on indefinite leave when a vacant position meeting his qualifications is available.

In Dieng v. Orkin LLC, an employee injured his knee on the job and was placed on medical restrictions that prevented him from performing his regular job functions. One month later, the employee’s doctor approved increased activities but not enough to resume his previous job. The employee repeatedly requested to be returned to a light-duty position, but the employer did not respond, keeping him on indefinite leave. After 16 months of leave, the employee resigned and sued, alleging failure to accommodate his disability by failing to reassign him to several available positions that met his qualifications and medical restrictions. The district court dismissed the ADA claims because the employer accommodated the employee by providing leave.

On appeal, the Fourth Circuit reversed the lower court’s decision on the employee’s ADA claims and remanded the case to review his ability to perform those alternative jobs. The court noted that the ADA requires employers to determine if reassignment is an effective and reasonable accommodation instead of leaving employees on indefinite leave. While reassignment is usually an accommodation of last resort, there was no dispute that the employee could not return to his prior job. In that situation, leave cannot substitute for a determination of whether an alternative job was available.

The ADA does not require employers to create a light-duty position as an accommodation. However, if the company has vacant jobs for which the employee is qualified, the employer must determine if such reassignment is a feasible and effective accommodation.

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