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definitions, and concepts in this bill should be defined as clearly as possible, to ensure the goals of the bill can be reached through its methods.
The first item which troubles ne, and I am sure a great many employers, is the broad, vaguely defined concepts of "reasonable accommodation" and "undue hardship." The concept of reasonableness has perplexed and eluded lawyers and lawmakers ever since it was introduced. The terms are subjective by definition; one person's reasonableness is another's undue hardship. I believe the use of these concepts, broadly defined, in this legislation will only perpetuate the overburdening of our already backlogged legal systen.
What is needed is a common denominator: something that will allow for measurement and objectivity 80 that an employer and employee can tell when the balance has been reached or the line has been crossed. For most employers, and particularly in construction, cost effectiveness is a major factor in the analysis of what can reasonably be done to accommodate an employee. Under H.R. 2273, it is not clear how much an employer would be expected to spend, and to what lengths he or she must go in achieving accommodation.
Another factor that should be taken into consideration in determining what is reasonable is the nature of the industry or the particular job, and the extent of the person's disability. As I pointed out, the construction jobsite is a dangerous place to work, and I can tell you trankly that there are jobs for which I think it is impossible to accommodate people with some disabilities--even with unlimited
A construction site requires unrestricted mobility to negotiate the clutter and limited access areas that are necessarily part of the project. It is beyond my concept of reasonable accommodation to see how such a site could be made safely accessible to someone in a wheelchair, for example.
However, there are positions in construction companies that can be made accessible for an employer with such a handicap. In fact, Harkins, Inc. employs a contracts manager who is wheelchairbound and recently required accommodation to work on a particular project. This employee generally works at our main office in Silver Spring. However, the construction user for a bigh-rise, luxury condominium Harkins, Inc. was contracted to build, imposed a requirement that only those people working at the construction site would be paid. Therefore, Dave had to be brought onto the actual site for an 18 month period. This required extensive renovation and accommodation, just to enable him to work in the trailer which serves as a temporary office on larger construction sites.
For the benefit of those who may not be familiar with the physical conditions of a construction site, there is usually little in the way of human comforts or conveniences, including parking and even bathroom facilities. Workers often have to park in a public lot, and use portable toilets. However, to accommodate one person on the site, we had to provide special parking for his van, build ramps into the trailer, widen all of the corridors in the trailer, modify his work area so that everything was the proper height, and put a bathroom in the trailer. This is very rare in construction worksite trailers, as it requires obtaining a water and sewer hookup for a temporary office. In addition, an assistant had to be assigned to help Dave get around the site, which was possible only after the structure was largely completed.
We were able to make this accommodation for Dave, primarily because we are a large, stable construction company. There are many construction employers who simply could not afford such a move. In fact, some do not even maintain a trailer that the worksite that could be modified. Clearly, what was a reasonable accommodation in our eyes would be an undue hardship in some other construction company's view. It is my hope that language identifying and quantifying some of these factors would be included in the ADA bill's definition of "reasonable accommodation."
Perhaps the second largest concern for construction employers is how the ADA bill will impact our ability to maintain safe worksites. As project manager, a large portion of my job focuses upon jobsite safety. The use of illegal drugs and alcohol on the construction site is extremely dangerous, and is often a contributing factor to worksite accidents. Several years ago, ABC made substance abuse in the workplace a number one priority. must be certain that the ADA bill does not tie employers' hands who are taking steps to stop America's drug problem.
The current language of H.R. 2273 merely states that "qualification standards" may include "requiring that the current use of alcohol or drugs by an alcoholic or drug abuser not pose a direct threat to property or the safety of others in the workplace or program." ABC strongly supports the ability of employers to maintain a workplace that is drug-free, not simply monitored for those employees who pose a "direct threat," through illegal drug use. Many construction employers conduct pre-employment drug tests on applicants for work on a construction site. This process is implemented because it has been shown to drastically reduce the number of accidents on the worksite, and increase the quality of work on projects. The "direct-threat" language, as well as the prohibition of pre-employment drug testing, in H.R. 2273 will greatly inhibit contractors' efforts in the area worksite safety. In the recent Senate debata on s. 933, language was included in the ADA bill which clearly precluded current users of illegal drugs, or those abusing alcohoi, trom protected disabled status. I strongly urge the nembers of the Education and Labor Committee to amend 8. R.2273 in this manner.
Mr. Chairmen, ABC is concerned with many other provisions in H.R. 2273. However, in the interest of time, I would like to have them inserted in the record of today's hearing as an appendix to my testimony. Again, I thank you both for the opportunity to testify today on such landmark legislation as the Americans with Disabilities Act, and I will be happy to answer any questions you may have regarding my testimony.
The House ADA bill (H.R. 2273 - Section 205) will allow individuals to pursue a cause of action not only if they have been discriminated against, but also if they believe they "are about to be" discriminated against. Such speculative complaints, and attendant litigation are not permitted in any other civil rights in employment litigation. An individual may also sue in cases not only of intentional discrimination, but also in
of unintentional discrimination. The Senate bill (s. 933) has eliminated these issues and ABC feels the House bill should do the same.
The House bill essentially grants more rights to disabled Individuals than any other protected class of people by allowing them to circumvent any and all types of administrative remedies, and move directly to a private right of action in the courts complete with injunctive relief, a jury trial and punitive and compensatory damages. This will simply lead to increased litigation in hopes of a large windfall judgement for the plaintiff and his or her attorney, rather than constructive resolutions to the problems of accessibility. We strongly recommend that this be changed to adopt the Senate bill's approach which adopts The civil Rights Act of 1964 Title VII procedures and remedies, which include filing charges with the EEOC, and if the EEOC does not act, then a private cause of action may be initiated for injunctive relief and back pay.
The scope of the House bill covers all employers with 15 or more employees. The Senate bill covers 25 or more employees for the first two years, and thereafter 15 or more employees. At a minimum the House should adopt the Senate language, but preferably increase the threshold number of employees. Many small businesses have more than 15 employees and the concepts in this legislation will be new and very costly to implement. Furthermore, the definition of "employer" does not specify whether the 15 employee floor is 15 or more employees per worksite, or total employees, regardless of varying geographic locations. Obviously, clarification of this definition is important to our smaller member finns who may employ 15 people, but they are dispatched in small groups of two or three to varying worksites.
with or without reasonable accommodation are not denied employment opportunities.
Each provision of the employment title operates to support these two fundamental principles. In the committee's first hearing on the ADA, the business community circulated two working papers outlining their concerns with the ADA.
The primary concerns in the employment area address the confu. sion created by Title I and Title II provisions which seem to apply differently to the same situation.
The inclusion of 1981 remedies and employment, the request for a definition of undue burden, the clarification that the ADA did not conflict with drug-free work place policies, and the removal of the word “identify" from the section barring discriminatory selection criteria, every one of these concerns was dealt with in a Senate compromise.
The disability community fully supported the 1988 ADA introduced by Senator Weicker and Congressman Coelho, which was stronger in protection than the 1989 ADA before us today.
The disability community strongly supported the provisions of S9-33 as reported out of committee and H.R. 2273 as it is today. In the spirit of political compromise, we are willing to support the Senate compromise, but we are not willing to use it as a starting point to whittle down even further.
The business community has been more than reasonably accommodated. There is no more compromising to do and still maintain fundamental civil rights protection for persons with disabilities.
Let me specifically address the concerns set forth the NFIB's testimony today which I did have the opportunity to read before the hearing. As you will see, some of the concerns stem simply from misunderstandings of the bill's provision and the rest, I am afraid, from a basic unwillingness to be subject to any disability, civil rights legislation.
Mr. Rasmussen asked, "How can a business owner make physical changes to the work place even before a specific disabled person begins work?” In employment, the ADA like Section 504 requires the accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability.
Reasonable accommodation may include making existing facilities used by the disabled employee accessible. This is done on an individual basis according to the needs of the employee. This is true of all accommodations. Hence, the question posed on page four of the NFIB testimony as to which auxiliary aids are required for deaf or blind employees would again be subject to the needs of the individual and subject to the undue burden defense.
I would like to clarify the question asked by Mr. Ballenger about his plant to Mr. Kemp. I don't know if I caught exactly what the plant is, but basically, the procedure in employment is if someone in a wheelchair wants to apply to your firm, the ADA, as 504 re quires that the applicant be reasonably accommodated which mwht mean that you make an alternative site to interview the ap plivant and to determine if that applicant is otherwise qualified for ne job that is open in your plant.