Mr. EDWARDS. We thank the Attorney General for helpful testimony today, and we congratulate the Department and administration on its affirmative attitude on this legislation. I know that no member wants to miss the vote on the flag.

Further questions can be submitted to you in writing, Mr. Attorney General, and thank you again.

The committee is adjourned, and in about 5 minutes, the subcommittee handling this matter will be called to attention for further hearings on the ADA.

[Whereupon, at 12:20 p.m., the committee adjourned, to reconvene subject to the call of the Chair.]

AMERICANS WITH DISABILITIES ACT OF 1989

THURSDAY, OCTOBER 12, 1989

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The subcommittee met, pursuant to notice, at 12:30 p.m., in room 2141, Rayburn House Office Building, Hon. Don Edwards (chairman of the subcommittee) presiding.

Present: Representatives Don Edwards, F. James Sensenbrenner, Jr., and Craig T. James.

Also present: Stuart J. Ishimaru and Ivy L. Davis, assistant counsels; and Colleen Kiko, minority counsel.

Mr. EDWARDS. The subcommittee will come to order.

This afternoon, the subcommittee continues hearings on the Americans with Disabilities Act. Just moments ago, the full committee heard testimony from the Attorney General in full support of the bill, as passed by the Senate.

Yesterday, the subcommittee heard testimony from a number of groups who were concerned about the bill. I believe that most of their concerns can be accommodated within the confines of the bill, and I look forward to working with them to clear up any uncertainties.

Without objection, I would like to place in the record statements from the Associated General Contractors of America and from Prof. Stephen Fawcett and Barbara Bradford of the University of Kansas.

[The prepared statements follow:]

More than 32,500 firms, including 8,000 of America's leading general contracting firms, responsible for the employment of 3,500,000-plus employees;

102 chapters nationwide;

More than 80% of America's contract construction of commercial
industrial and
buildings, highways,

facilities.

municipal-utilities

The Associated General Contractors of America (AGC) welcomes the opportunity to comment on H.R. 2273, "The Americans with Disabilities Act of 1989." AGC supports the goals of this bill, and its Senate companion, S. 933. AGC cannot, however, lend its support to all of the specific provisions of the proposed legislation, because some provisions could have a negative impact on the construction industry's effort to stop unlawful drug use, and to ensure jobsite safety. AGC is also concerned that vague language will waste resources on litigation.

DRUG USP

First, AGC believes that it remains important to ensure that the legislation will not hinder the business community's efforts to discourage unlawful drug use. The construction industry has found that drug users not only cut productivity, but also increase accident rates.

Recent studies reveal that as many as 23% of all American workers use drugs on the job, and that drug use may account for over half of all accidents in the workplace. Some AGC members have found that 30% to 50% of their job applicants cannot pass preemployment drug tests. One AGC member recently found that 40% of its employees tested positive for drug use after workplace accidents. Responding to its members' concern, AGC has adopted a "zero tolerance" policy that does not tolerate any level of

unlawful drug use by anyone in the construction industry.

S. 933 appears to protect the employer's right to test for unlawful drug use, but H.R. 2273 does not. AGC urges the members of the subcommittee to take the Senate's approach, in order to avoid the problem that the Rehabilitation Act of 1973 has created for federal contractors and certain others. Within the last month, a federal court has held that the 1973 statute forbids the Immigration and Naturalization Service to discharge a drug-addicted attorney arrested for cocaine use and possession of narcotics paraphernalia. Nisperos v. Buck, Case No. CC-88-4039-WWS (N.D. Cal. September 12, 1989).

CONSTRUCTION JOBSITES

AGC's second concern is that the proposed legislation will compromise sound employment decisions made in the interest of jobsite safety. The unique nature of the temporary construction jobsite, with its ever-changing structure, makes it impractical, if not impossible, to guarantee the safety and health of all disabled Americans who might seek employment on construction jobsites.

The proposed definition of "disability" is extremely broad. The U.S. Supreme Court has held that elementary school teachers with contagious tuberculosis fit within the similar definition in the 1973 statute. Nassau County School Board v. Arline, 480 U.S.

273 (1987).

More

importantly,

the courts have held that