§ 44.14. Job modification.
(a) An employer shall make reasonable accommodations by modifying a job, including, but not limited to, modification of duties, scheduling, amount or nature of training, assistance provided, and the like, provided that the modification does not impose an undue hardship.
(b) Nothing in this section may be construed to require application of different production, attendance or disciplinary standards for the handicapped or disabled worker.
Comment The Commission considers the requirement of job modification subject to the undue hardship defense to be consistent with a fundamental principle that underlies this chapter, to wit that some degree of special treatment or ‘‘reasonable accommodation’’ is within the contemplation of Act 318. Act 318 indicates that a handicap or disability is only job related if it substantially interferes with essential functions of a job. Conversely, a nonsubstantial interference, or interference with nonessential functions does not make a handicap or disability job related. Thus, the Commission expressly rejects the suggestion of some commentators that any need to modify a job renders a handicap or disability job related. Rather, the Commission believes that the General Assembly intended handicapped or disabled people to receive, not identical treatment, but treatment that would create for them effective equality of opportunity.
Subsection (b) clarifies, as requested by some commenters, that a handicap or disability is job related if it would require changes in production, attendance, or disciplinary standards. However, this subsection is, of course, subject to the general requirement to make reasonable accommodation, as set forth in § 44.5(b).
Notes of Decisions Reasonable Accommodations
‘‘Reasonable accommodations’’ to the needs of a handicapped employe did not include the application of a different attendance standard nor the creation of a new job. Magel v. Federal Reserve Bank of Philadelphia, 776 F.Supp. 200, 204 (1991); affirmed 5 F.3d 1490 (3rd Cir. (Pa.) 1993).
AIDS is a ‘‘handicap’’ for purposes of the Pennsylvania Human Relations Act (43 P. S. § § 951—1003). Employer failed to demonstrate that the accommodation of employe infected with AIDS works undue hardship on the enterprise’s operation. Cain v. Hyatt, 734 F.Supp. 671 (E.D. Pa. 1990).
If the employe suffers from arthritis and can no longer perform her job duties, and the employer makes every reasonable effort to continue the employe, offering her a disability retirement or a demotion to a position which has duties she can perform in absence of the availability of any other positions for which she is qualified, the employer is justified in suspending and removing her for rejecting both of the alternatives offered. Laws v. Philadelphia County Board of Assistance, 412 A.2d 1377, 1380 (Pa. Cmwlth. 1980).
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