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would allow an employer to prohibit the use of illegal drugs by an employee and prohibit the use of alcohol in the workplace.
Mr. Chairman, 25 years ago Congress and the President were finalizing enactment of the Civil Rights Act of 1964, one of the most comprehensive civil rights laws ever passed. We now have the chance to extend the Nation's civil rights guarantees to the disabled community and the Department and the Administration are pleased to support this landmark legislation.
That concludes my remarks. We would be happy to answer any questions that any of you may have. Thank you.
Mr. LUKEN. Mr. Shane, with regard to that last statement that you made, current DOT regulations do not mandate alcohol tests for railroad employees; do they? Mr. SHANE. Let me ask Mr. Lindsey to address that.
Mr. LINDSEY. Yes, Mr. Chairman, they do, under certain circumstances. For example, in postaccident testing, testing for alcohol is required. Mr. LUKEN. But not random testing? Mr. LINDSEY. Not random testing, no, sir.
Mr. LUKEN. Not preemployment testing? So what Mr. Shane told us wouldn't be accurate then, because current DOT regulations don't provide for the significant testing for alcohol; right?
Mr. LINDSEY. We believe this is significant testing for alcohol, Mr. Chairman.
Mr. LUKEN. Not random? You don't believe in random, Mr. Lindsey?
Mr. LINDSEY. Yes, I do.
Mr. LUKEN. Isn't that the key, random? You don't include random testing. Everybody we talk to in the industry says random is the most important thing.
Mr. LINDSEY. Random is an important additional element in our program, Mr. Chairman.
Mr. LUKEN. Well, maybe you ought to get around to putting random alcohol testing into your regulations. It is about time; don't you think?
Mr. LINDSEY. It is under consideration, Mr. Chairman. Mr. LUKEN. It has been under consideration for a long time, Mr. Lindsey.
Mr. LINDSEY. Yes, sir, it has.
Mr. LUKEN. We have had this discourse for a long time, you and I and other representatives. Mr. LINDSEY. Yes, sir, we have.
Mr. LUKEN. One other little point here which maybe isn't so little on the drug testing. Title I of the Senate bill says you can't discriminate against a qualified individual with a disability; right, Mr. Shane?
Mr. SHANE. Yes, sir. .
Mr. LUKEN. But the bill only excepts users of illegal drugs from this definition. That is what you described. What about persons who use prescription drugs-legal prescriptions—and are addicts? They would be covered under the bill; wouldn't they, and would be protected? Do you intend that that would be the case?
Mr. SHANÉ.. I would like to turn to my colleagues for anything they would like to add to this, but my guess is that some of those kinds of details are going to have to be worked out in regulations. I think the operative concept is "qualified individual." I would think that in certain work circumstances the required use of certain pre scription drugs might be inconsistent with the requirements of the workplace, such as the operator of a transportation service, but perhaps somebody else can offer enlightenment.
Mr. LUKEN. Would anybody else like to add anything?
Mr. LINDSEY. I would like to. We have certainly cases in the railroad industry where prescription drugs or over-the-counter medicines have been misused in the workplace, but I don't think any of those uses that we have observed could fall under the definition of handicapped under the bill, whereas someone who is addicted to an illegal drug might be able to make such an argument absent something in the statute that would defeat that argument.
I believe that that is the important distinction, Mr. Chairman.
Mr. LUKEN. You mean you can't be addicted to legal drugs? Are you saying there aren't such people?
Mr. LINDSEY. No, I am not sure there are not, Mr. Chairman. There may be. I don't think we have observed a case of that in any of the people in the railway industry where we have a problem.
Mr. LUKEN. See no evil, hear no evil; is that the administration's position?
Mr. LINDSEY. No, sir.
Mr. LUKEN. Then we have to deal with it. We have to decide that question in order to properly frame this legislation.
Mr. LINDSEY. Yes, we do.
Mr. LUKEN. Aren't there people who are addicted to and on legal drugs? And wouldn't that be a concern for an employer?
Mr. LINDSEY. Yes, sir, it would.
Mr. LUKEN. The employer wouldn't be able to discriminate against such a person under the bill as drafted; is that right?
Mr. LINDSEY. I believe it would still be possible under the qualification provision that Mr. Shane referred to say that, as employers now may, people who are using prescription drugs that might affect their performance must report that to the company and the company may bar them from service in certain areas, at least-cer. tainly, for example, in safety-sensitive jobs in the rail industry, if prescription drug use is. inconsistent with the stated performance of their job.
Mr. LUKEN. You are saying something that sounds reasonable, but it doesn't have any foundation in this bill as far as I can see.
Mr. LINDSEY. I believe that that -
Mr. LUKEN. If the bill made an exception for persons who are users of illegal and legal drugs or, as Mr. Shane suggested, if you could adopt regulations that would so provide-then what you are saying, I think, would be correct.
Mr. LINDSEY. I believe that certainly is the result we would like to see obtained, if I may
Mr. LUKEN. It may not be the biggest issue in this legislation, however, I think it is important enough to try to settle it.
Mr. LINDSEY. If I am mistaken in my view
Mr.. LUKEN. It is unsettled in my mind. I am certainly not acousing anybody of any shenanigans or anything. It is just a problem we are bringing up. Mr. Shane?
Mr. SHANE. Mr. Chairman, perhaps I could just add that there are really two circumstances I think that you are referring to. One is where you do have habitual use of a legal drug for medicinal, maybe legitimate medicinal purposes. It would, as Mr. Lindsey says, be incumbent upon the employee to notify the employer of the use of that substance in order that there be a determination whether the use of the substance would impair the user for purposes of his or her responsibilities in the workplace. That is one situation.
Mr. LUKEN. But if I may interrupt, you say it would be incumbent. But would that requirement in itself be discrimination under this bill?
Mr. SHANE. If, in fact, there were an impairment of the ability of
Mr. LUKEN. I bet it would. I bet a court would so hold under this bill.
Mr. SHANE. Would hold what, Mr. Chairman?
Mr. LUKEN. Just what I said, that the requirement to report the use of legal drugs would be discrimination under the bill.
Mr. SHANE. I am confident that if there were any impairment of the user's ability to perform a job that was suffused with a safety responsibility because of its location in the transportation industry, that that user would not be protected by any provision of the Senate bill. I don't believe any provision of the House bill would, either.
Mr. LUKEN. If you could speak for the Supreme Court, I might be more confident of your confidence. I am not sure what you base that confidence on. However, we may be getting to a circular point in the discussion. If you want to submit anything for the record after you review this that might clarify it in any way, the record will certainly be held open.
Mr. SHANE. It is an important point, Mr. Chairman. I would like to take a closer look.
Mr. LUKEN. It is a very difficult point. You may well be right in your interpretation. I would just like to have a better explanation.
On the issue of the obligation for Amtrak under this bill, all newly purchased, remanufactured and used vehicles must be accessible. Do you have an estimate? Does this administration currently have an estimate of how much this will cost Amtrak?
Mr. SHANE. I think the first point to be made is that the requirement imposed by the legislation on Amtrak is not, in fact, a new requirement for Amtrak because the DOT section 504 regulation, implementing the Rehabilitation Act of 1973, as I understand it, has precisely
the same effect. I just wanted to get to some numbers in response to your question. Ignoring the difference between the section 504 regulation and the ADA, just looking at what we understand to be the real out-of-pocket cost of the requirements, and, obviously, we will want to hear from Amtrak on this question, we believe that the range is somewhere between $35 and $50 billion.
Mr. LUKEN. Mr. Claytor says in his testimony today that the cold reality of Amtrak's capital budget is that a priority must be placed on prejects that keep Amtrak's operation safe and reliable:
We simply have not had nor do we presently have the appropriated capital to fund the costs of achieving station accessibility to our national system.
Do you have any comment on that?
Mr. SHANE. That requirement has been in place since 1979. I guess my comment is that I am discouraged to hear that. We had obviously intended when the section 504 regulations were first promulgated that the program be implemented immediately, that over a period of time would culminate in fully accessible stations.
That is not the case. Now we have legislation that goes to exactly the same effect. I can't talk, frankly, very effectively to Amtrak's capitalization or their revenue stream. I think we really need to hear from Amtrak's management on that.
Mr. LUKEN. You haven't heard from them? You say you have to hear from Amtrak's management on what?
Mr. SHANE. We certainly talk to Amtrak. I am talking about in the context of this hearing.
Mr. LUKEN. In the context of this bill?
Mr. SHANE. Of this hearing this morning. I am just saying thatyou have asked me a question about Amtrak's costs, and I am offering you our view of those costs, but I simply defer to Amtrak on the matter.
Mr. LUKEN. Mr. Claytor goes on further to say that compliance with the act's intercity station accessibility requirements be made subject to the appropriation of funds specifically authorized for that purpose. Do you think that that addition should be made to the legislation?
Mr. SHANE. No, sir, I don't. I go back a long way in the Department of Transportation. I was there when we actually tried to implement the National Rail Passenger Act which created Amtrak, and it was our intention that Amtrak be created as a for-profit corporation, that it not be a subsidized entity.
That hasn't worked out that way, as everybody knows, and in fact we continue to subsidize it, but it is still the administration's intention that eventually they operate as a for-profit corporation.
Mr. LUKEN. That's a nice high aspiration. That would be all of our hope, like a pie in the sky, but it was never a realistic one, and only the administration entertains such illusions at various times. In fact, regularly the Reagan administration and now the Bush administration entertains that illusion, but here we now have the reality. The administration has opposed the funding levels in the authorization bill which we just passed and has in the past opposed such funding levels, so it seems to me that the position of the administration is somewhat in conflict.
How do you reconcile the administration's support of the ADA bill with its opposition to Amtrak's funding?
Mr. SHANE. Well, again, as to Amtrak, the implications of the bill are not new. The requirements that the bill would impose on Amtrak are requirements that have been in place a long time. It is, if you will, an old story for Amtrak's purposes, and we haven't seen any reason to suddenly change our view of Amtrak funding simply because we now have incorporated the old section 504 requirements.
Mr. LUKEN. If it serves as a reminder of the fact that your position is unrealistic, couldn't you deal with it?
Mr. SHANE. If, in fact-
Mr. LUKEN. I mean, it is an irreconcilable conflict that you have in your position. The fact that it isn't new doesn't mean that it isn't still true.
Mr. SHANE. You will have to understand, Mr. Chairman, that no one has authorized me to come here and make any different arrangements with respect to the funding of this legislation.
Mr. LUKEN. I think I am about running out of time, not out of questions, but out of time. The gentleman from Kansas is recog. nized.
Mr. WHITTAKER. Thank you, Mr. Chairman, Mr. Shane. Following back up on some of the aspects of the drug situation, what about the situations where-and these already exist-where drug or alcohol testing is mandated not by Federal regulation, but by employer policy and or collective bargaining agreements, and in that context, then, how can we be sure that such arrangements will continue to be legal when section 104(c)(2) says that the bill is not meant to encourage, prohibit, or authorize drug tests and says nothing at all about alcohol tests?
Mr. SHANE. Congressman Whitaker, this is a very interesting area of inquiry, and I will be perfectly honest with you. I don't know how effectively I can respond this morning to that. What I would like to do is go back and take a harder look at that provision and see whether or not it does create a problem in terms of our obligation to keep the workplace drug free and keep the transportation system as safe as possible.
Mr. WHITTAKER. The chairman has already indicated he is going to keep the record open, so we would appreciate your submitting your opinions and thoughts.
Mr. SHANE. Thank you, sir.
It is appropriate for section 104 of the bill to protect the employer's right to take adverse action against a worker who uses illegal drugs, whether or not that use can be shown to result in impairment, unsafe behavior, or poor performance. With respect to legal drug use (e.g., under a medical prescription), however, the bill properly ties the employer's discretion to take action against an employee to job performance. Under section 103(a), an employer may establish job-related qualification standards consistent with business necessity. Even if legal use of drugs were considered to be a disability under the facts of a case (e.g., a situation in which an individual is addicted to painkillers prescribed for a medical condition), an employer may take adverse action against an employee because the employee, owing to his use of the drugs, is unable to perform job functions safely or adequately according to the employer's standards for its employees.
Mr. WHITTAKER. Mr. Shane, are you familiar with the amount of appropriated funds supported in the fiscal year 1990 budget for Amtrak and how that compares with funds Amtrak received in 1989? Let me just follow on. It is essentially the same. You are not providing Amtrak with any additional support.
In fact, we had to struggle to get what we got, but if Amtrak's not even being supported by the administration for funds that keep up with inflation, then how is Amtrak supposed to pay for implementation for all the equipment and station modifications specified in this bill?
Mr. SHANE. Again, Congressman, we are imposing costs on transit companies and private companies and public facilities across the