1. (a) An employer may not terminate, subject to different terms or conditions of employment, or refuse to hire or promote an employe or applicant because of a present handicap or disability which is not job-related but which may worsen and become job-related or because of a past job-related handicap or disability which may or may not recur; provided that this subsection is not construed so as to impose an undue hardship on the employer.

2. (b) In determining whether or not an undue hardship is imposed by the requirements of subsection (a), factors to be considered in addition to those appearing at § 44.4 (relating to definitions) include, but are not limited to:

   1. (1) The length, cost and nature of training required for the job.

   2. (2) The length of service the employer can reasonably expect before the employe’s handicap or disability is likely to become job-related.

      Comment

      Changes have been made from an earlier proposed version of this section to meet the suggestions of commentators. Job advancement and past handicaps or disabilities which might or might not recur have been added to the protections of the section. An undue hardship defense has been added as well as defenses aimed at protecting an employer’s right to expect a reasonable return on investment. However, consistent with the thrust of § 44.5 and § 44.4 the Commission rejects the suggestion that this section be tied to an employe waiver of disability and death benefits.

Notes of Decisions

An employer may refuse to promote an employe to a position based on the employe’s physical inability to perform essential functions without the employer’s actions being deemed discriminatory. Department of Corrections v. Weaver, 606 A.2d 547 (Pa. Cmwlth. 1992); appeal denied 612 A.2d 986 (Pa. 1992).

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 (1990).

The Human Relations Commission’s determination that applicant’s handicap is nonjob related is in accordance with the law when the employer fails to prove a demonstrable or serious threat of harm to applicant or that it will suffer undue hardship if applicant is employed. State Police v. Human Relations Commission, 457 A.2d 584 (Pa. Cmwlth. 1983).