Leave as an Employment Accommodation
Leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) receives lots of[...]
By: Rebecca Williams
Jamal is an employee with a mobility disability who uses forearm crutches to walk. As a company benefit, employees are provided parking in the garage adjacent to the building. However, it is first come, first serve. Jamal usually gets there early so that he can park in an accessible space near the elevator. Recently, all of the accessible parking spaces have been occupied when he gets there. As a result, Jamal has had to park in a space some distance from the elevator. He is exhausted by the time he gets to his desk. He has requested a reserved, accessible parking space near the elevators as an accommodation. As an employer, what should you do? The answer is, “it depends”.
We frequently get questions about similar situations at the Southeast ADA Center. This can be a complex question and requires an evaluation of individual circumstances.
First, it’s important to understand that an employer's obligation to provide a reserved parking spot as a reasonable accommodation for a worker with a disability is different than the obligations they have under Title III of the ADA (Public Accommodations) to provide a specific number of accessible parking facilities for the general public, including their employees and customers. The number of accessible parking spaces is based on the total number of spaces in the entire lot. Employees and customers use the same accessible spaces, and these spaces are first come, first served. However, if the parking needs of an employee with a disability are not being met, then the employer must look at preferential parking as a potential reasonable accommodation issue.
For example, an employer owns a retail store with a large parking lot. One of their employees has a condition that limits her stamina, making long distances difficult to walk. It could be that she does not need an accessible aisle but does need a space close to the entrance with signage that indicates it is reserved for a specific employee.
Potential solutions include allowing her to park in a location not available to the public or reserving a space for her, close to the entrance with signage that indicates that this space is reserved for her.
Let’s consider another example. An employer has separate parking facilities for employees and customers. Employers and businesses can place restrictions on parking facilities. They can also have different parking lots for different groups as long as accessibility is provided for all groups. If there is an “employee only” lot, it should have the minimum number of accessible spaces required. It should also have an accessible route to wherever employees are going.
An accommodation request for a reserved parking spot in the “employee” parking lot is evaluated in the same manner as previously discussed. The obligation to provide individualized reasonable accommodation for employees is a layer on top of basic parking access requirements.
Parking as an accommodation gets complicated when an employer does not provide parking for employees. Whether the provision of parking for employees with disabilities is required when parking is not provided does not have a clear-cut answer. Parking as an accommodation is a debate among employees, employers, and the courts. Many would argue the ADA really only requires an employer to provide equal opportunities in the terms, benefits, and facilities that it provides for all employees. In this case, some argue that if parking were not provided for anyone, an employer would not have an obligation to provide it for a worker with a disability. However, at least one court in New York State ruled that an employer had an obligation to provide paid parking in a parking garage for an employee with a disability although it did not provide parking for employees in general. The court reasoned that providing parking was the only way the employee was going to be able to get to work. (United States Court of Appeals for the Second Circuit. Docket No. 95-7030. Beth Lyons v The Legal Aid Society.)
What are the accommodation requirements when an employer rents space in a parking garage and provides employee parking in that facility? Who is responsible—the employer or the parking garage owner—for providing parking as an accommodation for an employee with a disability?
The employer is always the entity responsible for accommodating their employees. The owner or operator of the parking garage may have obligations under Titles II or III of the ADA in terms of ensuring that the parking garage is accessible, has an adequate number of accessible parking spaces that are on an accessible route. However, the parking garage owner has no additional obligation to provide a reasonable accommodation to someone else's employee. Depending on the needs of the individual worker, the employer may be able to arrange with the garage to pay an additional fee or make modifications to the garage such as restriping, signage, etc. to allow the employer to meet its obligation to accommodate the worker.
Each accommodation request should be looked at on a case-by-case basis in relation to undue hardship. Best practice for employers who receive a request from an employee with a disability for parking as an accommodation is to begin the interactive process as quickly as possible. Gathering information about the employee’s needs, review current parking policies, and determine if the request is reasonable and does not result in an undue hardship.
As our workforce ages, the likelihood that employees will need reasonable accommodations, including parking, will increase. Human Resource professionals will be best prepared by understanding how to proactively address these requests for the benefit of their workforce.
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