The Accommodation of Last Resort: Reassignment
Reassignment as an Accommodation Under the ADA — Recent Developments
Under the Americans with Disabilities Act (ADA), when an employee requests an accommodation based on a disability, the employer must provide a reasonable accommodation that allows the employee to perform their job, unless doing so poses an undue hardship on the business. It is less well-known that the ADA also requires an employer to consider—generally as a last resort before denying other possible accommodations—whether the employee can be reassigned to a vacant position for which they are qualified.
The U.S. Court of Appeals for the Fourth Circuit recently reaffirmed the requirement of reassignment as an accommodation in Dieng v. Orkin, LLC, No. 25-1221 (4th Cir. Aug. 5, 2026). The Dieng decision contains several important implications for employers:
In determining whether an employee is a “qualified individual” protected by the ADA, an employer should consider both whether the employee can—with or without an accommodation—perform the essential functions of the job they hold, and whether they could perform the essential functions of any vacant position for which they are qualified.
Keeping an employee on unpaid leave indefinitely is not an effective or reasonable accommodation, at least when there is another reasonable accommodation available to the employee (such as reassignment).
When determining whether an employee is qualified for a vacant position, the employer should consider what that position actually entails, not just what the written job description says.
Regarding that last point, in Dieng the employee was medically restricted from lifting more than 20 pounds, and he argued that he should have been considered for (among other things) the position of Sales Representative. Although Orkin’s written job description for Sales Representative stated that the position required “heavy work,” such as lifting up to 60 pounds, multiple employees testified or submitted sworn statements that Sales Representatives did not all perform such “heavy work.” As a result, the Fourth Circuit allowed the question of whether the plaintiff was qualified for that position to proceed to trial.
Although not clarified in Dieng, other caselaw holds that if there is no other way to reasonably accommodate an employee’s disability, an employer must consider reassigning the employee to a vacant position for which they are qualified—even if the employer has better-qualified candidates for that position. See EEOC v. Mfrs. & Traders Tr. Co., 429 F. Supp. 3d 89, 111 (D. Md. 2019).
Reassignment as an Accommodation Under the ADA — EEOC Guidance
In its October 2002 Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA (Enforcement Guidance), the Equal Employment Opportunity Commission (EEOC) addresses reassignment as an accommodation, stating that unless an employee desires reassignment above other possible accommodations, an employer may not offer reassignment as the only available accommodation until it has determined that no other reasonable accommodation is available. This is notable because under the Enforcement Guidance, employers otherwise fulfill their obligations under the ADA when they offer an employee any reasonable accommodation, even if it is not the specific accommodation requested or desired by the employee.
The Enforcement Guidance also states that when an employer is evaluating vacant positions to which they can offer reassignment as an accommodation, the employer must first offer reassignment to vacant positions that are “equivalent in terms of pay, status, or other relevant factors (e.g., benefits, geographical location).” If no such position exists for which the employee is qualified, the employer must then look for vacant lower-level positions for which the employee is qualified. If there are multiple vacant positions for which the employee is qualified, then the employer should place the employee into the position that is most equivalent to their current position, or confer with the employee about which position they prefer. The Enforcement Guidance clarifies that “reassignment does not include giving an employee a promotion.” Therefore, if there is a vacant position that would constitute a promotion, the employer may require the employee to compete for that position.
The Enforcement Guidance also indicates that employers must not only inform employees about currently vacant positions, but also about positions that the employer knows will become vacant within a reasonable amount of time. The EEOC provides only two examples of what constitutes a reasonable amount of time in this context: in one example, it states that the employer must inform the employee about vacancies it knows will exist four weeks out; while in another example, it states that the employer need not inform the employee about vacancies that will exist six months out.
Reassignment as an Accommodation Under the PWFA and Title VII
Like the ADA, the Pregnant Workers Fairness Act (PWFA) explicitly requires employers to provide reasonable accommodations to employees who need them because of “pregnancy, childbirth, or related medical conditions,” unless doing so would impose an undue hardship. And because the PWFA adopts the ADA’s definition of “reasonable accommodation,” it too will require employers to consider reassignment to a vacant position as a possible accommodation.
Title VII of the Civil Rights Act of 1964 (Title VII) has, since its inception, prohibited employers from discriminating against employees with respect to any of the terms or conditions of employment because of their religion. In 1972, Title VII was amended to make explicit—as the EEOC had until then argued was implicit—that an employer’s failure to reasonably accommodate an employee’s religious observances or practices constitutes a form of religious discrimination unless providing the accommodation would impose an undue hardship on the employer.
Until 2023, the EEOC and most courts interpreted a decades-old decision by the U.S. Supreme Court to mean that, under Title VII, “undue hardship” meant “more than a de minimis cost.” See Groff v. DeJoy, 600 U.S. 447, 454 (2023). In 2023, however, the U.S. Supreme Court clarified that in the Title VII context, “undue hardship” means “substantial increased costs in relation to the conduct of [the employer’s] particular business.” Groff, 600 U.S. at 470. It is not yet clear whether any court has addressed whether, under this new framework, employers must consider reassignment as a religious accommodation. Unless and until courts answer that question in the negative (which we think is unlikely), we would advise employers to also consider reassignment as a religious accommodation, at least as a last resort.
Employer Takeaways:
Consider affirmatively asking employees who request accommodation under the ADA, the PWFA, or Title VII whether they would be interested in reassignment as an accommodation (at least as a last resort). If the employees reject such an accommodation, employers may not be burdened with having to, among other things: (i) search for any current or soon-to-be vacant positions for which the employee may arguably be qualified; and (ii) analyze whether the employee would really be qualified for such positions, based not just on written job descriptions, but also on the real-world requirements of the position.
When it comes to searching for soon-to-be vacant positions, how far into the future employers must look may depend on the jurisdiction in which they (or their employee) are located. Although some courts may agree with the EEOC’s Enforcement Guidance that employers need not consider offering an employee a position that will become vacant in six months, some other courts may disagree and find that an employer must offer to keep such an employee on unpaid leave during that time and then offer that position when it becomes available (assuming that doing so would not pose an undue hardship on the employer).
Leave issues are complicated by divergent fact patterns and a patchwork of relevant laws. The best course of action is to engage legal counsel in any complex accommodation analyses.
