tions, but they are almost certain to be ambiguous because of the terms of the statute. We urge that Congress and the EEOC adopt the language and intent of the relevant provisions of the Rehabilitation Act of 1973 (29 U.S.C. 794) to avoid unnecessary litigation over developed concepts.

The proposed legislation presents a unique set of problems for the railroad industry. Railroads are required to provide their employees with a safe place to work. This has been construed to mean that it is a violation of that duty to allow a person to perform a job beyond his physical capabilities. To comply with that duty, railroads have medical standards which, if not followed, can be the basis of liability under the Federal Employers Liability Act (45 U.S.C. sec. 51 et seq.). There is a natural conflict between the duty to provide a safe place to work and the proposed legislation requiring the employment of people with disabilities.

For example, railroads may be held liable for allowing employees with heart conditions to perform strenuous work under the FELA if those employees suffer heart attacks. Additionally, railroads may be liable for injuries caused by fellow employees with disabilities who must be employed under the proposed legislation.

re

Section 101(b) of H.R. 2273, in describing defenses available to employers, provides for qualification standards and specifies that such standards may include quiring 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 program." Thus the bill would "appear to define alcoholism and drug addiction as disabilities and preclude denial of employment of alcoholics or drug addicts unless current use could be proven and it could be demonstrated that such use poses a threat to property or the safety of others. Existing regulations promulgated by the Federal Railroad Administration, as well as pending legislation, prohibit unauthorized use of controlled substances whether on duty or off duty without requiring a specific finding of impairment or a showing that there is an immediate threat to property or the safety of others. The language of the bill assumes that there can be instances where the current use of drugs might be tolerated. Thus, the language of Section 101(b)(2)(a) is at cross-purposes with the objective of totally eliminating drug use by employees in safety sensitive positions in the railroad industry as a threat to the safety of employees and the public. We urge that the House adopt the language of Section 104 of S. 933 as passed by the Senate.

Sincerely,

WILLIAM H. DEMPSEY, President.

Hon. THOMAS LUKEN,

THE PRESIDENT'S COMMITTEE ON
EMPLOYMENT OF PEOPLE With DisabiLITIES,

Washington, DC, October 20, 1989.

Chairman, Subcommittee on Transportation and Hazardous Materials,
Washington, DC.

DEAR MR. CHAIRMAN: Thank you for the opportunity to respond to several concerns expressed by members of Congress during Committee hearings on the Americans with Disabilities Act.

The President's Committee has conducted consensus meetings with leaders in business, government, rehabilitation, and disability rights in 45 communities over the last seven years. These meetings have enabled communities to identify the major barriers to employment of people with disabilities. Consistently, inaccessible transportation services have been identified as a major barrier, second only to discriminatory attitudes. Therefore, the President's Committee feels strongly that fully accessible public transportation is essential to full employment of people with disabilities.

Prior to addressing specific concerns raised during the hearings, I would like to share with you a recent article, copy attached, published in "Report on Disability Programs," entitled "Transit Agencies Finding Costs of Lifts Cheaper Than Providing Paratransit." We believe that the economics of mainline lift equipped buses versus paratransit is not limited to Tulsa, Atlanta and Seattle.

I would now like to address, from our perspective, the accessibility requirements under the Americans with Disabilities Act for intercity and commuter rail service. We believe there are several misunderstandings that need clarification.

The ADA, as we understand it, does not impose any additional accessibility requirements on Amtrak. In fact it appears the bill represents a reduction in obligation by deferring current requirements for twenty years. As we understand current statutory and regulatory mandates, Amtrak was required to be completely accessi

ble as of July 1989. That being the case, Amtrak could be required to make stations accessible immediately. The ADA, on the other hand, would permit Amtrak to phase in compliance gradually without the threat of immediate action.

It seems that some witnesses assume that an accessible restroom would be a necessary component of every accessible rail vehicle; that wheelchair securement devices would be required; or, in some cases, that vehicle lifts would be mandated. As I understand it, the bill does not specify any of those items but, like the Architectural Barriers Act on which it was partly modeled, requires only that new vehicles meet standards for accessibility.

Accessibility involves more than access for wheelchair users. Therefore, we believe, all new vehicles should meet minimum requirements for lighting, slip resistant surfaces, clearances, handrails, et cetera and the regulations should deal with the requirements for other accessible elements such as restrooms. Congress can ensure that regulations appropriately address these issues through report language or legislative history.

Amtrak representatives and the American Institute of Architects have expressed concern about the cost of modification that would be necessary to the stations Amtrak uses. In all likelihood the Uniform Federal Accessibility Standards [UFAS] would be the minimum design standards secured for the Act. Therefore, there would be no obligations in terms of new or altered construction by the ADA. Furthermore, under the ADA, Amtrak would have more of an opportunity to develop additional cost-sharing arrangements with entities that currently own stations used by Amtrak. Certainly, both the Architectural Carriers Act and UFAS would have a substantial history to guide compliance without causing hardship.

The commuter rail operators allude to two common myths among transportation agencies: (1) That serving persons with disabilities will delay on-time performance. Our response to that is, to our knowledge, even in bus systems where complex lifts must be deployed and ridership is high, there is no evidence to substantiate this allegation. (2) That serving persons with disabilities will result in lost seating. Our response to that is, it is our understanding, that in level-boarding rapid and commuter rail systems it is precisely because every car is accessible that seating is not lost. Wheelchair users can fit into available space, provided for standees, on several cars instead of the additional maneuvering clearance which would be required if several wheelchairs were required to be accommodated on the same car.

Mr. Chairman, the ADA is, above all else, civil rights legislation. It is good solid legislation that addresses years of discrimination against people with disabilities. We believe that a look at the facts will alleviate many of the concerns of the transit industry.

We feel the above information is vital for the ADA. We believe passage of the ADA will provide the essential foundation for full employment and full participation in society by our Nation's citizens with disabilities.

Sincerely,

Attachment

JUSTIN DART, Chairman.

TRANSIT AGENCIES FINDING Costs of LIFTS CHEAPER THAN PROVIDING PARATRANSIT Economics of a local transit system will have profound effects on that system's ability to serve people with disabilities, the vice chairman of the Metropolitan Tulsa Transit Authority [MTTA] told conferees at the American Public Transit Association's annual meeting last week.

"The first major step in addressing the economic problems is for the local transit board to develop a total annual operating budget for the entire program," explained Brook D. Tarbel. "One portion of this budget will deal with the cost of serving people with disabilities. How much money is allocated to this item of the budget will dictate operation of "The Decision Making Process in the Choice of Services for Persons with Disabilities'."

Tarbel described the effects of economics on MTTA's system. While the total amount of money in the budget decreased over the last four years, the city of Tulsa had to pay a higher percentage of the budget, with fewer dollars coming from the state and federal governments, he said. During that time, the city signed a contract for paratransit service, refusing to buy lift-equipped buses. Between February 1987 and June 1989, the total number of paratransit rides increased from 3,731 trips per month to 18,897 trips per month. In the last fiscal year, the total; cost of the paratransit service was $988,460, more than 17 percent of MTTA's total operating budget.

The cost of the paratransit service, combined with a change in the composition of the transit authority's board, has since led to a change in the stance of the MTTA on lift-equipped buses, Tarbel explained. It has placed an order for 16 lift-equipped buses due for delivery in February 1990. Since the federal government pays 95 percent of the fixed-lift cost, the total expense to the transit system for the lifts will be $600 per bus.

"This figure indicates that to make Tulsa's entire fleet of 84 buses totally accessible in the future would cost the city $50,400," said Tarbel. "This figure can hardly be considered a significant cost when compared to the paratransit expense." Atlanta and Seattle also have found that the cost of buying lift-equipped buses is actually less than the cost of paratransit, he added.

Legislative Update

Budget Reconciliation. The Senate Finance Committee October 3 approved a proposal to raise the amount of money that certain Social Security recipients may earn without suffering a reduction in their benefits. The panel also voted to make the Social Security Administration an independent agency, moving it out of the Department of Health and Human Services. The provisions were part of the budget reconciliation will being considered by the committee. The bill also contains other measures related to disability, but details were not available at press time. See the next issues of RDP for more information.

Labor-HHS-Education Appropriations. As RDP went to press, Senate and House conferees were meeting to hammer out differences in their different versions of appropriations for the departments of labor, education and health and human services. The Senate late in September approved a bill that provides $2.083 billion of education of the handicapped programs, while the House in early August approved about $20 million less for those programs. Once conferees reach an agreement, the compromise must be approved by the full House and Senate.

AMERICANS WITH DISABILITIES ACT

(101-32)

HEARINGS

BEFORE THE

SUBCOMMITTEE ON SURFACE TRANSPORTATION

OF THE

COMMITTEE ON

PUBLIC WORKS AND TRANSPORTATION HOUSE OF REPRESENTATIVES

ONE HUNDRED FIRST CONGRESS

FIRST SESSION

ON

H.R. 2273

TO ESTABLISH A CLEAR AND COMPREHENSIVE PROHIBITION OF DISCRIMINATION ON THE BASIS OF DISABILITY

26-421

SEPTEMBER 20, 26, 1989

Printed for the use of the Committee on
Public Works and Transportation

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON: 1990

For sale by the Superintendent of Documents, Congressional Sales Office
U.S. Government Printing Office, Washington, DC 20402

COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION

GLENN M. ANDERSON, California, Chairman