Volume 03 Issue 01
Parking and the ADA, Act II
In JAN's Consultants' Corner titled Parking and the ADA, Act I, we looked at whether an employer has to provide parking as an accommodation for an employee with a disability under the Americans with Disabilities Act (ADA) when the employer does not provide parking for other employees. In Act II, we look at what accommodations an employer must provide related to parking when the employer provides employee parking.
Note: Nothing in the ADA prohibits employers from taking a more practical approach to accommodations and providing them when possible, regardless of whether they are required by law.
The following two questions are inquiries that JAN frequently receives regarding this issue:
1. When an employer has separate parking for staff and managers and the managers' parking is closer to the work-site, does the employer have to consider allowing a staff employee with a disability to park in the managers' lot?
According to informal guidance from the Equal Employment Opportunity Commission (EEOC), parking is a benefit of employment. Under the ADA, the obligation to provide reasonable accommodation does not require an employer to provide benefits of employment to employees who are not otherwise entitled to them. However, there are different ways to define parking as a benefit of employment and the way you define it affects the scope of an employer's obligation to provide parking-related accommodations. One way to define parking as a benefit of employment in the question above is to limit it to parking in the staff parking lot. If you limit the definition in this way, the employer would not be required to allow staff with disabilities to park in the managers' parking lot because parking in the managers' parking lot is not a benefit of employment available to staff employees. A second way to define parking as a benefit of employment is to expand it to all parking lots controlled by the employer. If you broaden the definition in this way, the employer would be required to consider allowing a staff employee to park in the managers' parking lot because the employer has control over who parks there. The EEOC has not taken a formal position on this issue.
Note: The U.S. Court of Appeals Second Circuit stated in Lyons v. Legal Aid Society that employers might have an obligation to provide parking beyond what is provided for similarly situated employees. As a result, employers in New York, Vermont, and Connecticut may have to consider the accommodation requested in the question above regardless of how parking as a benefit of employment is defined.
2. If an employee has a state-issued permit to park in accessible parking, does an employer have to allow the employee to park in an accessible space in the customer parking lot?
According to informal guidance from the EEOC, employers do not have to allow employees to park in the customer parking lot, even if an employee has a state-issued parking permit. First, qualifications for state-issued parking permits are different than the ADA's definition of disability so an employee does not automatically qualify as a person with a disability entitled to an accommodation solely on the basis of the parking permit. Second, even if an employee with a state-issued parking permit meets the ADA's definition of disability, employers probably do not have to allow employees to park in the customer parking lot. As mentioned in the answer to question 1, the answer may depend on how you define parking as a benefit of employment, but in question 2, no employees are allowed to park in the customer lot so there may be a better argument that the employer does not have to allow an employee with a disability to do so.
Remember, employers are free to choose among effective accommodation options so if they cannot provide accommodation in the employee parking lot, they may want to explore other accommodations such as moving the employee's workstation closer to the parking lot, providing valet parking, or allowing work from home.
For technical assistance regarding the ADA Accessibility Guidelines for parking, visit: http://www.access-board.gov/adaag/about/bulletins/parking.htm.
For information on the ADA's definition of disability, visit: How to Determine Whether a Person Has a Disability under the Americans with Disabilities Act (ADA), Volume 02, Issue 04.