Parking Rights?

Texas Katz · July 2006

Greetings Everyone:

I am a new member with an unusual question:

I work for a government county office. The county does not provide handicapped parking for its employees. The county does provide handicapped parking for the general public, but they are normally taken by 8:00am. Therefore, the employees have to compete with jurists, witnesses, visitors, etc for these few spots.

The problem: We have an employee that has a physical disability. She comes in after 8:00am due to her medical condition. There is a parking lot behind the building, reserved for media and judges. There is also a parking garage that charges $6.00 per day (no in/out parking) nearest her place of employment. The county offers its employees the opportunity to park in this garage for $50.00 per month (in/out parking). Unfortunately, there is a two year waiting list to park in the garage. The employee cannot afford to parking in the garage at over $120 per month (she may have to leave and come back several times during the week for medical appointments).

The Question: Does the county have a legal obligation under ADA to provide her with a parking slot nearest her place of employment. Ideally, I'd like for her to park behind her building with the judges and media, but the argument has been made that if an accommodation has been made for one...

Having said that, I'd like for her to be able to park in the parking garage at $50 per month vs over $120, but again, I was told if an accommodation has been made for one... plus they did not want to put her at the top of the two-year parking list.

Help! What can I do to help this employee? x:D

Open1 · July 2006

Greetings and welcome!

Does this employee have a handicapped parking tag on her vehicle?

Texas Katz · July 2006

Yes, she does have a handicapped parking tag for her vehicle.

SMace · July 2006

The answer: You have to grant her a reasonable accomodation. That starts with a discussion between you and the employee about how you can solve this problem. She comes up with ideas, you come up with ideas and you decide if it is reasonable. Reasonable in part deals with cost, the effect on your business and the effect on other employees.

I know that ADA does not trump established senoirity systems. Whether that applies to a waiting list for a parking spot, I don't know. A competent attorney should answer that.

Could you paint a few spaces as employee handicapped and enforce towing when others park there? Maybe ee's with handicap tags could get special sticker.

WT · July 2006

I have read a case on this particular issue where the employer was required to furnish (i.e. pay for) a parking spot in a garage for a handicapped employee. This was a high paying job in a big city where the cost was much higher than what you quote and the employee was well able to afford paying for parking. Put in one or two more handicapped spaces in your surface parking lot and mark them for use of handicapped employees. As far as doing it for all, if you get more actually handicapped employees you would have to do so, but I would not really be afraid of that precedent.

Texas Katz · July 2006

Thanks for the welcome, Open1!

I agree with everyone -- the county should provide handicapped parking for ee's in need. Unfortunately, I work with attorneys and I was told since there is public handicapped parking in all the lots, this should suffice. Unfortunately, these few slots are gone by the time the employee arrives and so I am back to square one. She cannot take the bus because she has to go on several medical appointments...

I believe it to be reasonable accommondation to allow here to pay for a monthly parking pass in the garage ($50 per month), so she can park close to the building. Otherwise she is forced to walk a long distance each day with her painful disability from and to the parking lots.

Does anyone have anything I can cite to the attorneys regarding this ADA parking accommondation? Thank in advance everyone for your input!

njjel · July 2006

[font size="1" color="#FF0000"]LAST EDITED ON 07-12-06 AT 08:50AM (CST)[/font][br][br]I would recommend you contact your employment counsel on this and run it by him/her as it involves several different areas of employment law. We had the same issue here. we have no company parking - just city stree parking and there are no handicap spaces in the area of our building. We were advised that the ee would have to contact the city to creat a handicap spot in our area.

SMace · July 2006

Coupla things.

1. You say "I" believe it is a reasonable accomodation. That's your first mistake. She has to agree too. If she doesn't and is not involved in the process she can sue you.

2. Why can't your attorneys look up the law. Isn't that what attorneys do?

3. If the attorneys don't want to do their job, I would write a memo or email and advise them what to do. I would follow the advice given. Then it is up to them to decide. If they make the wrong decision, and you get sued it's their butt not yours.

Here is a link fo the attorneys.

[url]http://www.usdoj.gov/crt/ada/[/url]

Texas Katz · July 2006

Thanks SMace for your thoughts:

1. The employee also agrees with me that this is reasonable - it was one of her suggestions to me.

2. The county attorneys are following the lead of the infrastructure office - since there are spots for the public, then they believe there is no need to create special slots for ee's and no one wants to bump the lady to the top of the parking lot list since there is at least a 2 year waiting time. Everyone tells me she should just arrive earlier to get a handicapped slot in one of the parking lots - I try to explain she cannot be here earlier and she still has to walk a long distance.

3. Working for over 150 attorneys make it difficult for me to write a "memo" or e-mail telling them what to do... especially since my boss is one of those attorneys!

Thanks for the link!

davids · July 2006

I am currently dealing with just the opposite situation. We are a public employer and have a customer parking lot that has two disabled parking spaces. The intent is for these spots to be available for customers who have business to conduct in City Hall. Our problem is that employees, with disabled parking permits, take the spots first thing in the morning. Hence, the spots are not available for customers. Our attorney is currently researching whether or not we can prohibit the employees from using the disabled spots even though they have disabled parking permits. There is an alternative for the employees, but it would not be right outside the door. I will post our decision on how we are going to deal with this once it is made.

To address your issue, I am going to differ with others and say that I am not so sure that this is an ADA issue. I am sure there are some court cases that would say it is; but there are probably others that say the employer does not have to make accommodations so an employee can drive to work rather than take a bus. If it is an ADA issue, remember, that although you do have to engage in an interactive process, you are not obligated to go with the employee's choice. You do have the right to choose among all the reasonable options.

Texas Katz · July 2006

Thanks, DavisS for telling me about your situation - I am curious to see how your story turns out!

Your comments in the paragraph makes sense - I guess I would love to have a win-win scenerio. Looks like I might not get that! Thanks for your input - I will keep it in mind!

SMace · July 2006

Our
>attorney is currently researching whether or not
>we can prohibit the employees from using the
>disabled spots even though they have disabled
>parking permits.

You attorney is researching if you can prohibit a disabled employee from parking in a disabled spot? Please explain the good that will come out of that. Please.

I am sure there are some court
>cases that would say it is; but there are
>probably others that say the employer does not
>have to make accommodations so an employee can
>drive to work rather than take a bus.

Please explain the defense of this scenario. We can't paint more disabled parking spaces or even reserve a few for our disabled ee's. If they can't walk that far they should take the bus. IMHO a jury would shred that to pieces.

davids · July 2006

The issue is that I am talking about a customer parking lot, not an employee lot. Employees are not supposed to be parking in this particular lot. As a public agency we need to be accessible to the public. Do we tell our citizens that if they can't take the bus don't bother coming to City Hall?

Although I support providing accommodation, I think it is wise to first determine your legal obligation. You can always provide more than legally required; however, if you haven't answered the baseline question of what is your legal obligation, you may end up not providing enough. Therefore, I would not over react and provide accommodation without doing the legal research regarding the specifics of a situation.

SMace · July 2006

I still can't figure out why this is such a major issue. If you don't have enough disabled parking spaces to accomodate your disabled customers and ee's your going to have to make more spaces. There is not a jury in this world that wouldn't agree that is reasonable. All you need is some paint and some signs. If that intrudes on the non-diasabled folks they will have to park further away or go somewhere else.

To your last point, I agree with what you are saying, but I just don't see why you would research the possibility of doing something no one in their right mind would do. Unless you have a bored attorney on retainer or money to burn.

WT · July 2006

Just for your information, the case I made mention of was Lyons v. Legal Aid Society. This is a decision from the Second Circuit of the U.S. Court of Appeals. The case was dismissed by a lower court but the claim was reinstated upon appeal. It concerns a handicapped Legal Aid attorney bringing suit against an employer for refusal to provide her with paid parking adjacent to the work site. This parking reportedly cost between $300 to $500 per month. The employer in question did not offer parking of any kind to employees and the court did look at that.

In coming to a decision, the court quoted from EEOC interpretations which provide that accommodation may include making employer provided transportation accessible and providing reserved parking spaces.

Here the court went above and beyond the EEOC to let a claim be heard to make an employer establish a parking fringe benefit where non existed for any employee. If you already have a parking lot and your cost of accommodation will be a pint of paint to put on a handicapped logo and a sign saying employees only, just how reasonable will the employer look if the thing proceeds to court?

WT · July 2006

Working with lawyers can be tough. The case I spoke of is Lyons v. Legal Aid Society. This is a 1996 case so it cannot be considered recent. Here the Second Circuit U.S. Court of Appeals reinstated a claim dismissed by a lower court. An attorney had requested paid parking as an accommodation from an employer who did not provide parking for any employee. The court considered getting to work as an essential part of work and remanded the case for a fact specific study by the lower court. Note that the EEOC Interpretations list includes providing reserved parking spaces and the court quoted this section. I do not know whether the case actually went to trial or settled out. However, it does give an idea of where the court is going on this issue. The parking in question was reportedly 300 to 500 per month and thus, much more expensive than yours. What the lawyers overlook, is that the parking provided is of no value to the employee if she is denied the use of such parking depending on when she arrives.

Brother Bluto · July 2006

I'm outraged about your predicament, so excuse the sarcasim...You know, it's nice that everyone has done so much research and had so many lawyers involved. I'm sure that the whole experience has really made that disabled employee feel welcomed and appreciated by her employer. I'm sure that the debate over providing a parking space for a disabled person really shows all the other employees how much the employer really cares about their employees. Real moral booster! Let's put it before a trial and be caniving before we're forced to be humane. It's no wonder there are so many employment laws and so many employers getting sued in the US.
WT, I'd see about converting one of those media parking spaces into a handi-cap space - don't think there's any law that says media should take precidence over a handi-cap employee. If I worked at your office and could figure out a way, I would give up my space for the disabled person. Or better yet, make a space for employee of the month and let her park there. Keeping fighting WT!!!!!

mbp · July 2006

I applaud your response Brother
Bluto. As a recently disabled individual, I would hate to think that my employer spent this much time debating whether they can/should legally allow me to park in a handicapped spot. I know how exhausted I would be if I had to walk a long way to get to my office everday.
Please figure out a way to treat this employee as a productive member of society and an apprecited employee.

WT · July 2006

Unfortunately, when laws come in the door, common sense often flies out the window. Thus we in HR often focus on what we must do as opposed to what we can and should do. In our work place, of all the employees who have been injured, we have found a way to change things around and keep all but one of them. Our one failure just was not able to work and ended up with a disability retirement. A good many employees complained about "special treatment" for those employees. If more common sense (and common courtesy) were to be exercised by management and labor, I would be out of a job within a week. However, as it is, business gets better in HR every year.

Texas Katz · July 2006

Thank you everyone for your thoughts and comments - Yesterday I readdressed this issue with the office attorneys - hopefully the situation will be resolved where everyone is satisifed (I can dream can't I??)...

I have to admit, there's never a dull moment where I work -- and like WT said if everyone was treated with respect and courtesy, we'd all be out of a job... and so the drama continues... I hope everyone has a great weekend! x:7

Parking Rights?

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