Title 16 Pa. Code — Community Affairs

Part II Governor’s Office

Subpart A Human Relations Commission

Chapter 43 Posting of Notices

16 Pa. Code § 43.1 Nature of notice and posting.

An employer, employment agency and labor organization subject to the Pennsylvania Human Relations Act (act) (43 P. S. § § 951—963), shall post and maintain at their establishment fair employment practices notices furnished by the Human Relations Commission (Commission) indicating the substantive provisions of the act, where complaints may be filed and other information that Commission deems pertinent.

History

• Authority: The provisions of this Chapter 43 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 43 adopted January 25, 1966; amended August 24, 1970, effective June 12, 1971, 1 Pa.B. 1361, unless otherwise noted.

16 Pa. Code § 43.2 Posting by employers and employment agencies.

With respect to employers and employment agencies, the notice shall be posted conspicuously in easily-accessible and well-lighted places customarily frequented by employes and applicants for employment, and at or near each location where the employe services are performed.

History

• Authority: The provisions of this Chapter 43 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 43 adopted January 25, 1966; amended August 24, 1970, effective June 12, 1971, 1 Pa.B. 1361, unless otherwise noted.

16 Pa. Code § 43.3 Posting by labor organizations.

With respect to labor organizations, the notices shall be posted conspicuously in easily-accessible and well-lighted places customarily frequented by members and applicants for membership.

History

• Authority: The provisions of this Chapter 43 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 43 adopted January 25, 1966; amended August 24, 1970, effective June 12, 1971, 1 Pa.B. 1361, unless otherwise noted.

16 Pa. Code § 43.11 Nature of notice and posting.

An owner, lessor, assignor, builder, manager, broker or other person subject to the fair housing practices provisions of the Pennsylvania Human Relations Act (act) (43 P. S. § § 951—963), shall post and maintain a fair housing practices notice to be prepared by the Human Relations Commission (Commission), which shall set forth relevant information which the Commission deems necessary to explain and further the purposes of the fair housing practices provisions of the act.

History

• Authority: The provisions of this Chapter 43 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 43 adopted January 25, 1966; amended August 24, 1970, effective June 12, 1971, 1 Pa.B. 1361, unless otherwise noted.

16 Pa. Code § 43.12 Places where notices shall be posted.

The fair housing practices notices shall be posted and maintained in a well-lighted and easily accessible place in the office or other place of business where negotiations or agreements are customarily made for the renting, leasing or purchasing of housing accommodations. In housing developments, this notice shall be posted and maintained in a well-lighted and easily accessible place in the office or other place of business where negotiations or agreements are customarily made for the renting, leasing or purchasing of housing accommodations. In housing developments, this notice shall be posted in all model or sample homes. In apartment houses, this notice shall be posted in all model or sample apartments.

History

• Authority: The provisions of this Chapter 43 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 43 adopted January 25, 1966; amended August 24, 1970, effective June 12, 1971, 1 Pa.B. 1361, unless otherwise noted.

16 Pa. Code § 43.13 Giving of notice by title insurance companies.

A title insurance company handling transactions pertaining to realty within this Commonwealth shall attach to the title report or settlement certificate issued in all cases handled by it a notice in writing substantially as follows:

Your attention is directed to the provisions of the Pennsylvania Human Relations Act, (Act of Oct. 27, 1955, as amended (43 P. S. § 951 et seq.)) prohibiting discrimination because of race, color, religious creed, ancestry or national origin in the selling, leasing or financing of commercial housing. The said law pertains to all housing accommodations except (1) those situated in a single or two unit building in which one of the units is occupied by the owner thereof, and (2) those owned by religious, charitable, educational, private and fraternal organizations to promote the religious principles or the aims, purposes or fraternal principles for which such organizations were established. This notice does not in any way constitute an objection or defect in the title of the premises being conveyed, but is being given in accordance with 16 Pa. Code § 43.13 (relating to giving of notice by title insurance companies) adopted by the Pennsylvania Human Relations Commission.

History

• Authority: The provisions of this Chapter 43 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 43 adopted January 25, 1966; amended August 24, 1970, effective June 12, 1971, 1 Pa.B. 1361, unless otherwise noted.

16 Pa. Code § 43.14 Giving of notice by real estate brokers and salesmen.

A real estate broker or salesperson handling transactions pertaining to commercial housing or housing accommodations within this Commonwealth shall give to every owner or seller listing housing with the broker or salesperson, a notice in writing, to be supplied by the Human Relations Commission, in a form substantially as follows:

Your attention is directed to the provisions of the Pennsylvania Human Relations Act, Act of October 27, 1955, as amended (43 P. S. § 951 et seq.). This law prohibits discrimination because of race, color, sex, religion, ancestry or national origin in the selling, leasing or financing of residential housing. All housing offered for sale is subject to the provisions of the law. In the rental of housing, the provisions of the law apply to all residences except (1) single or two-unit buildings in which one of the units is occupied by the owner or lessee, and (2) rooms in a landlord-occupied rooming house with a common entrance. The only general category of housing which is exempt from the provisions of the law is housing owned by religious, charitable, educational, private and fraternal organizations, and used to promote the religious principles or the aims, purposes or fraternal principles for which such organizations were established.

Note: An amendment to the Real Estate Brokers License Act of May 1, 1929, act of October 11, 1967, makes it unlawful for a real estate broker or salesman to accept a listing with an understanding that illegal discrimination in the sale or rental of housing is to be practiced.

The rules and regulations of the Pennsylvania Human Relations Commission (16 Pa. Code § 43.21) require that all licensed brokers or salesmen with whom you list your property for sale or rent shall give you a copy of this notice. The purpose of this notice is to help you comply with the fair housing provisions of the Pennsylvania Law.

History

• Authority: The provisions of this Chapter 43 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 43 adopted January 25, 1966; amended August 24, 1970, effective June 12, 1971, 1 Pa.B. 1361, unless otherwise noted.

16 Pa. Code § 43.21 Nature of notice and posting.

A person who is the owner, lessee, proprietor or manager of a place of public accommodation, resort or amusement, when directed by the Human Relations Commission (Commission), shall post and maintain at a place of public accommodation, resort or amusement, notices furnished by the Commission indicating the substantive provisions of the Pennsylvania Human Relations Act (43 P. S. § § 951—963) dealing with places of public accommodation, resort or amusement, where complaints may be filed, and other information that the Commission deems pertinent.

History

• Authority: The provisions of this Chapter 43 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 43 adopted January 25, 1966; amended August 24, 1970, effective June 12, 1971, 1 Pa.B. 1361, unless otherwise noted.

16 Pa. Code § 43.22 Posting of notices.

Notices shall be posted conspicuously in easily accessible and well lighted places at the place of public accommodation, resort or amusement where they may be readily observed by those seeking or granting any of the accommodations, advantages, facilities or privileges of the places of public accommodation, resort or amusement.

History

• Authority: The provisions of this Chapter 43 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 43 adopted January 25, 1966; amended August 24, 1970, effective June 12, 1971, 1 Pa.B. 1361, unless otherwise noted.

Chapter 44 Discrimination on the Basis of Handicap or Disability

16 Pa. Code § 44.1 Purpose.

The purpose of this chapter is to insure that all employment and public accommodations subject to the coverage of the act are conducted, operated, and made available in a manner which does not discriminate on the basis of handicap or disability and which will effectively promote integration of handicapped or disabled people into the mainstream of life in this Commonwealth.

The Commission considers the goal of integration to be mandated by the relevant legislative history, the precatory language that abounds through the act, and the definition of the term ‘‘discriminate’’ which includes ‘‘segregate’’ (Section 4(g) of the act). Efforts to comply with this chapter will be viewed by the Commission in light of their effect upon the integrationist policy.

History

• Authority: The provisions of this Chapter 44 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 44 adopted October 6, 1978, effective November 6, 1978, 8 Pa.B. 2715, unless otherwise noted.

16 Pa. Code § 44.2 Construction.

(a) This chapter shall be construed liberally for the accomplishment of the purposes of the act.

(b) This chapter will be construed consistently with other relevant Federal and State laws and regulations except where the construction would operate in derogation of the purposes of the act and this chapter.

The purpose of subsection (b) is to make clear the Commission’s intent to avoid varying and perhaps conflicting sets of rules and regulations for those subject to obligations created by this chapter. Thus, to the extent feasible, the Commission will consider compliance with prevailing requirements under sections 503—504 of the Federal 1973 Rehabilitation Act, Federal and State architectural barriers laws, etc., to satisfy the requirements of this chapter.

History

• Authority: The provisions of this Chapter 44 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 44 adopted October 6, 1978, effective November 6, 1978, 8 Pa.B. 2715, unless otherwise noted.

16 Pa. Code § 44.3 Enforcement.

This chapter shall be subject to and will be enforced in accordance with the act, Chapter 42 (relating to special rules of administrative practice and procedure) and 1 Pa. Code Part II (relating to general rules of administrative practice and procedure).

This section is added in response to suggestions from numerous commentators, upon the Commission’s first proposed regulations on handicap and disability.

History

• Authority: The provisions of this Chapter 44 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 44 adopted October 6, 1978, effective November 6, 1978, 8 Pa.B. 2715, unless otherwise noted.

16 Pa. Code § 44.4 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Act—The Pennsylvania Human Relations Act (43 P. S. § § 951—963). Commission—The Human Relations Commission. Facility—The term includes, but is not limited to, all or any portion of buildings, structures, equipment, roads, walks, parking lots, fixtures and other real or personal property. Handicapped or disabled person—Includes the following:

(i) A person who has or is one of the following:

(A) A physical or mental impairment which substantially limits one or more major life activities.

(B) A record of an impairment.

(C) Regarded as having an impairment.

(ii) As used in subparagraph (i), the phrase:

(A) ‘‘Physical or mental impairment’’ means a physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin, and endocrine or a mental or psychological disorder, such as mental illness, and specific learning disabilities.

(B) ‘‘Major life activities’’ means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

(C) ‘‘Has a record of such an impairment’’ means has a history of or has been misclassified as having a mental or physical impairment that substantially limits one or more major life activities.

(D) ‘‘Is regarded as having an impairment’’ means has a physical or mental impairment that does not substantially limit major life activities but that is treated by an employer or owner, operator or provider of a public accommodation as constituting a limitation; has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward the impairment; or has none of the impairments defined in subparagraph (i)(A) but is treated by an employer or owner, operator or provider of a public accommodation as having an impairment. Nonjob-related handicap or disability—The term includes the following:

(i) A handicap or disability which does not substantially interfere with the ability to perform the essential functions of the employment which a handicapped person applies for, is engaged in, or has been engaged in. Uninsurability or increased cost of insurance under a group or employe insurance plan does not render a handicap or disability job-related.

(ii) A handicap or disability is not job-related merely because the job may pose a threat of harm to the employe or applicant with the handicap or disability unless the threat is one of demonstrable and serious harm.

(iii) A handicap or disability may be job-related if placing the handicapped or disabled employe or applicant in the job would pose a demonstrable threat of harm to the health and safety of others. Undue hardship—The factors to be considered in determining whether an undue hardship is imposed by the requirement that a reasonable accommodation be made to a person’s handicap or disability include, but are not limited to, the following:

(i) The overall size and nature of a business, organization, program or public accommodation, including number of employes, structure and composition of workforce, and number and type of facilities. However, financial capability to make reasonable accommodations shall only be a factor when raised as part of an undue hardship defense.

(ii) Good faith efforts previously made to accommodate similar handicaps or disabilities.

(iii) The extent, nature and cost of the reasonable accommodation needed.

(iv) The extent to which handicapped or disabled persons can reasonably be expected to need and desire to use, enjoy or benefit from the employment or public accommodation which is the subject of the reasonable accommodation in question.

(v) Legal or proprietary interest in the subject of proposed reasonable accommodations including authority to make the accommodations under the terms of a bona fide agreement, such as a lease, governing or describing rights and duties with respect to the subject.

The Commission chose to reject the recommendation of several commentators that ‘‘reasonable accommodation’’ be defined. The term is increasingly used without definition, in the literature of discrimination law, is an evolving concept that changes with the state of technology, and is probably best left to construction on a developmental, case-by-case basis.

The definition of ‘‘handicapped or disabled person’’ is adopted verbatim from the definition of the United States Department of H.E.W.’s section 504 regulations in accordance with the recommendations of most commentators. The Commission is satisfied that the Federal definition avoids the ambiguity commonly complained of with respect to its own earlier definition. The terms ‘‘handicap’’ and ‘‘disability’’ are used interchangeably because that appears to reflect the plain intent of the Legislature. Notwithstanding the suggestions of several commentators, the Commission is not convinced that it is authorized by the act nor that it would be wise to establish various classes of handicapped or disabled persons with different protections depending upon the severity of handicap or disability.

The Commission has satisfied itself that the definition of ‘‘non-job-related handicap or disability,’’ § 44.4, is sufficient to overcome the criticism of many commentators that the chapter does not adequately tie protection from employment discrimination to qualification for employment. Although the Commission has deleted language from earlier proposed regulations specifically limiting the relevancy of collective bargaining agreements in the determination of job relatedness, the Commission remains committed to the well-established principle of law that private contracts, including collective bargaining agreements, are not valid to the extent that their terms violate antidiscrimination or other laws. Section 44.4, relating to conditions which might pose a threat of harm to the handicapped or disabled worker or applicant, is specifically intended to afford the same degree of self-determination as is available to able-bodied persons. This is considered consistent with the general goal of aiding persons with handicaps or disabilities to be full, independent participants in Pennsylvania life.

Factors relevant to a determination of undue hardship are set forth at § 44.4. However, the Commission emphasizes that the list is not exhaustive and that no single factor should ever be deemed necessarily dispositive.

It should also be noted that while the Commission deems the availability of the undue hardship defense to be necessary for the fair operation of this chapter, it will not be construed so as to develop into a large loophole for avoidance of the purposes of the act. As one thoughtful commentator upon the Commission’s originally proposed regulations noted, places of employment and public accommodation have for many years complied with health, safety, fire codes, etc., without undue hardship. It is not anticipated that compliance with this chapter will impose any greater hardship than those codes.

In response to suggestions from some commentators the Commission has deleted the ‘‘size of budget’’ language that appeared as an undue hardship factor in earlier proposed regulations and at § 44.4 has clarified that financial capability will be a factor appropriately considerable only when raised as a defense.

In connection with the fourth undue hardship factor, at § 44.4, it will generally be presumed that handicapped or disabled persons need and desire to use, enjoy, and benefit from employment or public accommodations in proportion to their able-bodied counterparts. Failure or nonexistence of previous attempts to use, enjoy or benefit will usually be deemed irrelevant because of the likelihood that such failure is attributable to historical discrimination and negative societal stereotyping rather than to lack of interest.

The Commission considers it distinctly inappropriate to exempt a lessee or other non-owner of facilities from reasonable accommodation obligations. The General Assembly can hardly be presumed to have intended that a factory owner-employer owes significant obligations of reasonable accommodation to handicapped or disabled employes from which he or she would be exempt if the factory were controlled by virtue of a long-term lease. However, to counter-balance any unduly harsh effects of this position, the Commission has designated proprietary rights, at § 44.4, as a factor relevant to the determination of undue hardship. The Commission was persuaded to take this approach in light of the inclusion of nonownership interests in the definition of ‘‘facility’’ under the United States Department of H.E.W.’s regulations to implement section 504 of the 1973 Rehabilitation Act and in light of the availability of tax credits for alterations to unowned facilities to improve accessibility for the handicapped under section 2122 of the Federal Tax Reform Act of 1976.

Section 44.4 shall not necessarily exempt from a charge of unlawful discrimination pursuant to section 5(e) of the act a lessor or any third party who refuses to permit or who interferes with the making of reasonable accommodation.

Undue Hardship

Termination of a police officer diagnosed with angina does not violate the State Human Relations Act when his condition prevented him from performing the essential functions of a police officer and the small size of the police department prevented city from making reasonable accommodation for the police officer’s handicap. Shoemaker v. Human Relations Commission, 634 A.2d 772 (Pa. Cmwlth. 1993).

Inability to obtain a position as police officer in city did not render individual handicapped. Pittsburgh v. Human Relations Commission, 630 A.2d 919 (Pa. Cmwlth. 1993).

The fact that a complainant is perceived as having a handicap or disability is sufficient, and it is not necessary for the complainant to further demonstrate that the ‘‘perceived’’ disability substantially limits one or more major life activities beyond the employer’s perception. Civil Service Commission of Philadelphia v. Human Relations Commission, 556 A.2d 933, 935 (Pa. Cmwlth. 1989); reversed 591 A.2d 281 (Pa. 1991).

Epilepsy of claimant, who was a urethane utility man, was considered a handicap which was job related because it posed a demonstrable threat to the health and safety of others. Murphy v. Cartex Corp., 546 A.2d 1217 (Pa. Super. 1988).

The Pennsylvania Human Relations Act (43 P. S. § 955(a)) and the regulations promulgated thereunder were impliedly preempted to the extent that Federal law establishes particular standards for mental and physical qualifications for security personnel at nuclear power plants. Burns Internship Security Services, Inc. v. Human Relations Commission, 547 A.2d 818 (Pa. Cmwlth. 1988).

An employer who reasonably relies on expert medical opinion stating that an applicant suffers from a job-related handicap has a good-faith defense under this section to a handicap discrimination claim even if employe’s experts subsequently controvert this opinion. Action Industries, Inc. v. Human Relations Commission, 518 A.2d 610 (Pa. Cmwlth. 1986); appeal denied 531 A.2d 433 (Pa. 1987).

The definition of handicapped or disabled person, which includes a person who is regarded as having an impairment in addition to persons with an actual impairment or having a record of an actual impairment, is not an improper extension of the Human Relations Act nor is it at odds with fundamental principles of law. State Police v. Human Relations Commission, 457 A.2d 584 (Pa. Cmwlth. 1983).

This section cited in 16 Pa. Code § 44.13 (relating to equipment modification); 16 Pa. Code § 44.15 (relating to handicaps or disabilities not presently but potentially job-related); and 16 Pa. Code § 45.4 (relating to definitions).

History

• Authority: The provisions of this Chapter 44 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 44 adopted October 6, 1978, effective November 6, 1978, 8 Pa.B. 2715, unless otherwise noted.

16 Pa. Code § 44.5 General prohibitions.

(a) Handicapped or disabled persons may not be limited, classified or segregated in a way that adversely affects their opportunities to use, enjoy or benefit from employment and public accommodations subject to the coverage of the act; except that this subsection may not be construed so as to impose an undue hardship.

(b) Handicapped or disabled persons may not be denied the opportunity to use, enjoy or benefit from employment and public accommodations subject to the coverage of the act, where the basis for the denial is the need for reasonable accommodations, unless the making of reasonable accommodations would impose an undue hardship.

Consistent with the purpose of this chapter to assure effective equality of opportunity for handicapped or disabled persons in an integrated setting, subsection (a) disallows compliance by any means that limits, classifies, or segregates handicapped or disabled persons and which adversely affects their opportunities. Of course, separate job classifications, programs, facilities, etc., would be permissible where necessary to guarantee effective equality of opportunity; but the existence of such separate classifications, programs or facilities generally will not be sufficient to justify denying a handicapped or disabled person the opportunity to use, enjoy or benefit from the employment or public accommodations opportunities available to the able-bodied.

Applicability

Section 44.5 applies only to employment and public accommodations, not to private housing. Doral II Condominium Association v. Human Relations Commission, 779 A.2d 605 (Pa. Cmwlth. 2001); appeal granted in part 801 A.2d 1207 (Pa. 2002); and order affirmed at 810 A.2d 634 (Pa. 2002).

Standard

Because the standard enunciated by the Federal courts establishes a direct violation of the Americans With Disabilities Act for failing to provide a reasonable accommodation for an employee’s disability, the ‘‘reasonable accommodation standard’’ is the proper standard to be applied to determine whether an employer has engaged in disability discrimination. Canteen Corp. v. Human Relations Commission, 814 A.2d 805 (Pa. Cmwlth. 2003).

History

• Authority: The provisions of this Chapter 44 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 44 adopted October 6, 1978, effective November 6, 1978, 8 Pa.B. 2715, unless otherwise noted.

16 Pa. Code § 44.6 Access.

(a) Every place of employment or public accommodation for which final design and construction plans are completed after November 6, 1978 shall be designed and constructed without architectural and other barriers or omissions that interfere with effective use and enjoyment of, benefit from, ingress to, egress from, and mobility within buildings, work areas, offices, facilities, and the like, by handicapped or disabled persons.

(b) After November 6, 1978, when all or part of a place of employment or public accommodation is subject to substantial alteration or alteration that could affect use by persons with a handicap or disability, alterations shall be planned and executed without architectural and other barriers or omissions that interfere with effective use and enjoyment of, benefit from, ingress to, egress from, and mobility within the altered portion by handicapped or disabled persons.

(c) With respect to existing facilities, employers and owners, operators or providers of public accommodations shall make reasonable accommodations to handicapped or disabled persons by eliminating architectural and other barriers or omissions that interfere with effective use and enjoyment of, benefit from, ingress to, egress from and mobility within buildings, work areas, offices, facilities, and the like by handicapped or disabled persons.

(d) An employer or owner, operator, provider of a public accommodation shall be deemed:

(1) To be exempt from the requirements of this section to the extent that they impose an undue hardship.

(2) To have complied with this section if design, construction or alteration is in conformance with relevant specifications of one of the following:

(i) The American National Standard Specifications for Making Buildings and Facilities Accessible to, and Usable by the Physically Handicapped, published by the American National Standards Institute, 1430 Broadway, New York, New York 10018.

(ii) The Department of Labor and Industry Standards, 34 Pa. Code Chapter 47 Subchapter D (relating to facilities for handicapped), promulgated under the act of September 1, 1965 (P. L. 459, No. 235) (71 P. S. § § 1455.1—1455.3a), known as the Architectural Barriers Law.

(e) Departures from the particular standards noted in subsection (d) shall be deemed to have satisfied the requirements of this chapter if it is evident that equivalent access or equivalent opportunity to use, enjoy or benefit in an integrated setting is thereby provided.

Section 2122 of the Federal Tax Reform Act of 1976 provides tax credits for alterations of property to promote accessibility.

The concept of effective use and enjoyment as used in this section relates not merely to physical and architectural barriers but also to those barriers or omissions such as inadequate warning or directional information systems which render a facility less usable for or less ‘‘accessible’’ to a person with a visual or communicative handicap or disability.

History

• Authority: The provisions of this Chapter 44 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 44 adopted October 6, 1978, effective November 6, 1978, 8 Pa.B. 2715, unless otherwise noted.

16 Pa. Code § 44.11 Preemployment process.

(a) A person may not be denied employment, promotion or another term, condition or benefit of employment solely for refusing to take a test, submit to a process, or answer a question prohibited by this section.

(b) An employer may not make use of an employment test, device or other selection criterion that screens out or tends to screen out persons with a handicap or disability unless both of the following factors apply:

(1) The test, device or other selection criterion is job-related for the position in question or a demonstrably related position.

(2) Alternative job-related tests, devices or criteria that do not screen out or tend to screen out as many handicapped or disabled persons are not shown by the Commission or the applicant to be available.

(c) An employer shall select and administer tests concerning employment so as best to ensure that, when administered to an applicant or employe who has a handicap or disability that impairs sensory, manual or speaking skills, the test results accurately reflect the applicant’s or employe’s job skills, aptitude or whatever other factors the test purports to measure rather than reflecting the applicant’s or employe’s impaired sensory, manual or speaking skills, except where those skills are the factors that the test purports to measure.

(d) Except as provided in subsections (f) and (g), preemployment inquiries that are intended to reveal or that may have the tendency to reveal the existence of a present or recurring handicap or disability shall be limited to those necessary to determine whether the handicap or disability is job-related; however, an employe or applicant to whom an oral or written inquiry is directed shall be provided the opportunity to explain why the handicap or disability is nonjob-related, including what special efforts the employe or applicant makes or what reasonable accommodations can be made to render the handicap or disability nonjob-related.

(e) An employer may not deny reasonable requests from an applicant for assistance in completing the application process.

(f) When an employer is taking remedial action to correct the effects of past discrimination against or is taking voluntary action to overcome the effects of conditions that resulted in limited opportunities for handicapped or disabled persons, the employer may invite applicants for employment to indicate whether and to what extent they have a nonjob-related handicap or disability, provided that:

(1) The employer states clearly on a written questionnaire used for this purpose or makes clear orally if no written questionnaire is used that the information requested is intended for use solely in connection with its remedial action obligations or its voluntary or affirmative action efforts.

(2) The employer states clearly that the information is being requested on a voluntary basis, that it will be kept confidential subject to the exceptions set forth in § 44.12 (relating to eliciting and disseminating information concerning an employe’s handicap or disability), and that refusal to provide it will not subject the applicant or employe to adverse treatment.

(g) Nothing in this chapter is deemed to preclude a bona fide medical examination; provided that all similarly situated employes or applicants are subject to the same examination without regard to handicap or disability.

This section is patterned after sections 84.13.14 of H.E.W.’s section 504 regulations. Subsection (a) is not intended to protect a person who acts in an untruthful, dishonest or deceptive manner in response to a preemployment process prohibited by this section. Rather, it protects the individual who refuses to submit to such a process. Subsections (b), (c) and (d) meet the objections of earlier commenters that the chapter did not sufficiently clarify that all preemployment selection criteria and screening processes must be job related.

The final sentence of § 44.11(d) merely provides the opportunity in certain circumstances for the applicant to explain why a seemingly job related handicap or disability is in fact nonjob-related or what reasonable accommodations can be made to render it nonjob-related. It is not intended to create special privileges in the applicant to intrude upon the employer’s business operation. For example, the subsection does not mandate that a handicapped or disabled applicant be permitted to inspect a work site, or be made privy to special information in order to assess how his handicap or disability can be accommodated.

History

• Authority: The provisions of this Chapter 44 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 44 adopted October 6, 1978, effective November 6, 1978, 8 Pa.B. 2715, unless otherwise noted.

16 Pa. Code § 44.12 Eliciting and disseminating information concerning an employe’s handicap or disability.

Information concerning a handicap or disability, medical condition or medical history of an employe, whether past, present or recurring, shall be accorded confidentiality as medical records and shall be retained only through the use of forms accorded confidentiality as medical records. The information may only be disseminated with the permission of the employe or when the employer can show a demonstrable business necessity for the dissemination including, but not limited to, the following:

(1) Responsible supervisors may be provided relevant information regarding restrictions on the work or duties of handicapped or disabled persons and regarding necessary accommodations.

(2) First aid, safety and other personnel may be provided relevant information where appropriate, if the condition might require emergency treatment or extraordinary measures by the personnel in the event of a safety hazard.

(3) Government agencies investigating compliance with any law may be provided relevant information upon request.

(4) Authorized representatives of a labor organization may be provided relevant information in the context of a bona fide labor dispute or grievance procedure.

(5) Insurers may be provided relevant information upon request for bona fide insurance purposes.

The reference in this section to past handicap or disability is not deemed inconsistent with section 5(b)(1) of the act, in that information relating to past handicaps or disabilities may be part of the bona fide medical examinations permissible under § 44.11.

Generally the section permits breaches of confidentiality and dissemination of information concerning an employe’s handicap or disability only if the employer can show that sound business reasons necessitate the dissemination.

The example at paragraph (1) refers to supervisory personnel who have responsibilities relevant to the work or duty restrictions of the handicapped or disabled worker.

Paragraph (4) has been included to permit an employer to reveal otherwise confidential information in order to avoid serious labor strife, e.g., the situation in which a union protests the job duty modifications permitted for one worker under § 44.14 without knowing why the modifications are being made.

Of course, nothing in this section will be construed to permit the dissemination of information as is prohibited by a superseding law or regulation such as the H.E.W. section 504 regulations.

This section cited in 16 Pa. Code § 44.11 (relating to preemployment process).

History

• Authority: The provisions of this Chapter 44 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 44 adopted October 6, 1978, effective November 6, 1978, 8 Pa.B. 2715, unless otherwise noted.

16 Pa. Code § 44.13 Equipment modification.

(a) An employer shall make reasonable accommodations by modifying equipment and tools so that they can be used by a handicapped or disabled employe; provided that the modification does not impose an undue hardship upon the employer.

(b) A handicapped or disabled person shall be allowed to provide his own equipment or tools in order to function properly in the job applied for or engaged in.

(c) In determining whether or not an undue hardship is imposed by the requirement that reasonable accommodations be made in accordance with this section, factors to be considered in addition to those appearing in § 44.4 (relating to definitions) include, but are not limited to:

(1) The effect the modification has on use of the equipment by others.

(2) The effect the modification has on warranties governing the equipment.

(3) The permissibility of making the modifications under applicable health and safety laws.

The Commission believes that subsection (a) places the burden of modifying equipment on the employer subject to an undue hardship defense. Subsection (b) merely prohibits the employer from disqualifying the employe who wishes to provide his or her own tools or equipment. Subsection (b) is not intended to prevent employers from requiring that the tools and equipment provided by handicapped and disabled workers comply with bona fide safety standards.

History

• Authority: The provisions of this Chapter 44 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 44 adopted October 6, 1978, effective November 6, 1978, 8 Pa.B. 2715, unless otherwise noted.

16 Pa. Code § 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.

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).

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).

History

• Authority: The provisions of this Chapter 44 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 44 adopted October 6, 1978, effective November 6, 1978, 8 Pa.B. 2715, unless otherwise noted.

16 Pa. Code § 44.15 Handicaps or disabilities not presently but potentially job related.

(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.

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

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

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.

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).

History

• Authority: The provisions of this Chapter 44 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 44 adopted October 6, 1978, effective November 6, 1978, 8 Pa.B. 2715, unless otherwise noted.

16 Pa. Code § 44.21 Generally.

If a handicapped or disabled person, with reasonable accommodation, meets the essential eligibility requirements for and is similarly situated with able-bodied persons in terms of need and desire to use, enjoy or benefit from a public accommodation, then reasonable accommodations shall be made to assure the person opportunity substantially equivalent to that of able-bodied persons to use, enjoy and benefit from the public accommodation in an integrated setting; provided that nothing in this section may be construed to impose an undue hardship upon an owner, operator or provider of a public accommodation, and provided further that nothing in this section may be construed so as to impose a demonstrable and serious threat of harm to the handicapped or disabled person or a demonstrable threat of harm to the health and safety of others.

This section requires that public accommodations made available to handicapped or disabled persons be substantially equivalent to, meaning equally effective as those available to able-bodied persons. Merely offering identical public accommodations without taking account of an individual’s handicap or disability may have the effect of excluding that individual from use, enjoyment, or benefit of the public accommodation.

It should specifically be noted that section 4(e) of the act defines public accommodation to include educational institutions. Accordingly, the Commission construes § 44.21 to require that public school districts which provide free education for able-bodied children must provide a substantially equivalent service for handicapped and disabled children; i.e. an education suitable to their individual needs. Compliance with the Department of Education’s regulation concerning Special Education—Program Responsibility, 22 Pa. Code Chapter 13 (Reserved), will be deemed sufficient to satisfy obligations created by this chapter.

Similar to § 44.4, which make health and safety factors relevant to determining the job relatedness of a handicap or disability, the Commission has met the concerns of some commentators by adding a new proviso to the effect that reasonable accommodation is not required where it will impose a demonstrable and serious threat of harm to the handicapped or disabled person seeking such accommodation or where it will impose any demonstrable threat of harm to the health and safety of others. The distinction, of course, is not due to any lack of regard for the health and safety of handicapped or disabled persons but rather to permit such persons the same degree of freedom of choice available to able-bodied persons.

Applicability

Section 44.21 applies only to employment and public accommodations, not to private housing. Doral II Condominium Association v. Human Relations Commission, 779 A.2d 605 (Pa. Cmwlth. 2001); appeal granted in part 801 A.2d 1207 (Pa. 2002); and order affirmed at 810 A.2d 634 (Pa. 2002).

History

• Authority: The provisions of this Chapter 44 issued under the Pennsylvania Human Relations Act (43 P. S. § § 951—963), unless otherwise noted.
• Source: The provisions of this Chapter 44 adopted October 6, 1978, effective November 6, 1978, 8 Pa.B. 2715, unless otherwise noted.

Chapter 45 Housing Accommodations/Commercial Property

16 Pa. Code § 45.1 Purpose.

This chapter insures that housing accommodations and commercial property subject to the coverage of the act are operated and made available in a manner that does not discriminate on the basis of one or more of the following:

(1) Familial status, age, race, color, religious creeds, ancestry, handicap or disability, sex or national origin.

(2) The use of a guide or support animal because of the blindness, deafness or physical handicap of the user or because the user is a handler or trainer of guide or support animals.

(3) The handicap or disability of an individual with whom the person is known to have a relationship or association.

The provisions of this § 45.1 adopted August 22, 1961; amended December 17, 1993, effective December 18, 1993, 23 Pa.B. 5901. Immediately preceding text appears at serial pages (167597) to (167598).

History

• Authority: The provisions of this § 45.194 issued under sections 1—6 of the Pennsylvania Human Relations Act (43 P. S. § § 954, 955, 959, 959.1, 959.1 note, 959.3 and 963).
• Source: The provisions of this Subchapter C adopted October 9, 1998, effective October 10, 1998, 28 Pa.B. 5136, unless otherwise noted.

16 Pa. Code § 45.2 Construction.

(a) This chapter will be liberally construed for the accomplishment of the purposes of the act.

(b) This chapter shall be construed consistently with other Federal and State laws and regulations except when to do so would operate in derogation or limitation of the purpose of the act and this chapter.

The provisions of this § 45.2 adopted December 17, 1993, effective December 18, 1993, 23 Pa.B. 5901.

History

• Authority: The provisions of this § 45.194 issued under sections 1—6 of the Pennsylvania Human Relations Act (43 P. S. § § 954, 955, 959, 959.1, 959.1 note, 959.3 and 963).
• Source: The provisions of this Subchapter C adopted October 9, 1998, effective October 10, 1998, 28 Pa.B. 5136, unless otherwise noted.

16 Pa. Code § 45.3 Enforcement.

This chapter will be subject to and enforced in accordance with the act, Chapter 42 (relating to special rules of administrative practice and procedure) and 1 Pa. Code Part II (relating to general rules of administrative practice and procedure).

The provisions of this § 45.3 adopted December 17, 1993, effective December 18, 1993, 23 Pa.B. 5901.

History

• Authority: The provisions of this § 45.194 issued under sections 1—6 of the Pennsylvania Human Relations Act (43 P. S. § § 954, 955, 959, 959.1, 959.1 note, 959.3 and 963).
• Source: The provisions of this Subchapter C adopted October 9, 1998, effective October 10, 1998, 28 Pa.B. 5136, unless otherwise noted.

16 Pa. Code § 45.4 Definitions.

(a) As used in this chapter, unless a different meaning appears from the context or a different definition is provided in this section, the definitions found at § 44.4 (relating to definitions) apply.

(b) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Act—The Pennsylvania Human Relations Act (43 P. S. § § 951—963). Aggrieved person—As used in section 9(a) of the act (43 P. S. § 959(a)), a person claiming to be aggrieved includes a person who does one of the following:

(i) Claims to be aggrieved by a discriminatory housing practice.

(ii) Reasonably believes that he will be injured by a discriminatory housing practice that is about to occur. Commission—The Human Relations Commission of the Commonwealth. Dormitory—A building with sleeping accommodations provided by an educational institution approved by, licensed by or if not required to be so approved or licensed, subject to 22 Pa. Code Part I (relating to Board of Education) for its on campus students. Housing accommodations or commercial property—All real property subject to the jurisdiction of the act. Housing for older persons—Housing that is one or more of the following:

(i) Provided under a Federal or State program that the Commission determines is specifically designed and operated to assist elderly persons as defined in a Federal or State program. In determining whether a Federal or State program is designed and operated to assist elderly persons, the opinion of the Secretary of Housing and Urban Development will be adopted.

(ii) Intended for, and solely occupied by persons 62 years of age or older.

(iii) Intended and operated for occupancy by at least one person 55 years of age or older per unit. Personal residence—A duplex house or other house in which the owner thereof maintains bona fide residence for himself. The term does not include a building containing three or more separate living quarters occupied or intended to be occupied by individuals or families living independently of each other, whether or not the owner maintains a bona fide residence therein. A building or structure occupied and used by the owner shall lose its identity as a personal residence when the owner moves out of the building and no longer uses it as a bona fide residence for himself. Protected class—The term includes the following:

(i) The race, color, familial status, age, religious creed, ancestry, sex, national origin, handicap or disability of any person.

(ii) The handicap or disability of an individual with whom the person is known to have a relationship or association.

(iii) The use of a guide or support animal because of the blindness, deafness or physical handicap of the user or because the user is a handler or trainer of guide or support animals. Real estate-related transaction—One or more of the following:

(i) Making or purchasing of loans or providing other financial assistance for purchasing, constructing, improving, repairing or maintaining a housing accommodation or commercial property.

(ii) Purchasing, constructing, improving, repairing or maintaining a housing accommodation or commercial property.

(iii) Selling, brokering or appraising real property. Rooming house—A building containing single rooms for rent with no private individual kitchen facilities for use by the renters.

The provisions of this § 45.4 adopted December 17, 1993, effective December 18, 1993, 23 Pa.B. 5901.

This section cited in 16 Pa. Code § 45.8 (relating to advertisements); and 16 Pa. Code § 45.13 (relating to exemptions).

History

• Authority: The provisions of this § 45.194 issued under sections 1—6 of the Pennsylvania Human Relations Act (43 P. S. § § 954, 955, 959, 959.1, 959.1 note, 959.3 and 963).
• Source: The provisions of this Subchapter C adopted October 9, 1998, effective October 10, 1998, 28 Pa.B. 5136, unless otherwise noted.

16 Pa. Code § 45.5 General prohibitions; undue hardship.

(a) A person may not limit or classify or segregate a person with a handicap or disability in any way that adversely affects the person with a handicap or disability’s opportunities to use, enjoy or benefit from housing accommodations or commercial property subject to the coverage of the act. This section does not prohibit a housing accommodation or commercial property provider from limiting the housing accommodation or commercial property to, or giving preference in the housing accommodation or commercial property to, persons with handicaps or disabilities.

(b) A person may not deny a person with a handicap or disability the opportunity to use, enjoy or benefit from housing accommodations or commercial property subject to the coverage of the act if the basis of the denial is the need for reasonable accommodations.

(1) A person may not refuse to make reasonable accommodations in rules, policies, practices and procedures when the accommodations may be necessary to afford a person with a handicap or disability equal opportunity to use and enjoy a dwelling unit, including public and common use areas.

(2) A modification of premises is a type of accommodation.

(c) An undue hardship defense will not be a defense in instances when specific actions are required by the act or other applicable Federal, State or local laws or regulations.

(d) The factors to be considered in determining whether an undue hardship is imposed by the requirement that a reasonable accommodation be made for the handicap or disability of a person include the following:

(1) The extent, nature and cost of the accommodation required, including the overall size and nature of the housing accommodation or commercial property. Financial capability shall be a factor when raised as a part of an undue hardship defense.

(2) The extent to which a person with a handicap or disability can reasonably be expected to need and desire to use, enjoy or benefit from the housing accommodation or commercial property which is the subject of the proposed reasonable accommodation.

(3) The requirements of other laws or contracts, to the extent they are not preempted by the act.

(4) The extent to which the accommodation would pose a demonstrable threat of harm to the health and safety of others.

The provisions of this § 45.5 adopted December 17, 1993, effective December 18, 1993, 23 Pa.B. 5901.

History

• Authority: The provisions of this § 45.194 issued under sections 1—6 of the Pennsylvania Human Relations Act (43 P. S. § § 954, 955, 959, 959.1, 959.1 note, 959.3 and 963).
• Source: The provisions of this Subchapter C adopted October 9, 1998, effective October 10, 1998, 28 Pa.B. 5136, unless otherwise noted.

16 Pa. Code § 45.6 Modifications of premises.

A person with a handicap or disability shall be allowed to make at his expense, reasonable modifications of existing premises, which are occupied or to be occupied by the person, if the modification may be necessary to afford the person full enjoyment of the premises. In the case of a rental, the landlord may, if it is reasonable to do so, require the renter to restore the interior of the premises to the condition that existed before the modification, excepting reasonable wear and tear.

The provisions of this § 45.6 adopted December 17, 1993, effective December 18, 1993, 23 Pa.B. 5901.

History

• Authority: The provisions of this § 45.194 issued under sections 1—6 of the Pennsylvania Human Relations Act (43 P. S. § § 954, 955, 959, 959.1, 959.1 note, 959.3 and 963).
• Source: The provisions of this Subchapter C adopted October 9, 1998, effective October 10, 1998, 28 Pa.B. 5136, unless otherwise noted.

16 Pa. Code § 45.7 Unlawful discriminatory practices.

It is an unlawful discriminatory practice for a person, because of the protected class of a person applying for purchase or rent, the protected class of an owner, occupant or user, or the protected class of a person seeking financing for housing accommodation or commercial property, to do one or more of the following:

(1) Offer or impose different or special terms or conditions in connection with the selling, renting or leasing of commercial property or housing accommodation.

(2) Offer or impose different or special terms or conditions in connection with the loan of money for the acquisition, construction, rehabilitation, repair or maintenance of housing accommodations or commercial property.

(3) Offer or impose different or special terms or conditions in connection with the tenancy, ownership or occupancy of any housing accommodation or commercial property.

(4) Offer or impose different or special terms or conditions in the furnishing of facilities of housing accommodation or commercial property.

(5) Offer or impose different or special terms and conditions in making available any real estate related transaction, including a secondary real estate financing transaction.

(6) Refuse to sell, lease, rent or finance, or refuse to negotiate for the sale, lease, rental or financing of housing accommodations or commercial property.

(7) Deny a person access to or membership in, a multiple listing service, real estate brokers’ organization or other services.

The provisions of this § 45.7 adopted December 17, 1993, effective December 18, 1993, 23 Pa.B. 5901.

History

• Authority: The provisions of this § 45.194 issued under sections 1—6 of the Pennsylvania Human Relations Act (43 P. S. § § 954, 955, 959, 959.1, 959.1 note, 959.3 and 963).
• Source: The provisions of this Subchapter C adopted October 9, 1998, effective October 10, 1998, 28 Pa.B. 5136, unless otherwise noted.

16 Pa. Code § 45.8 Advertisements.

(a) It is unlawful for a person to indicate in advertising that the housing that the person is offering for sale or lease is exempt from the act or to offer a preference, limitation or discrimination in the advertising of that exempt property.

(b) This section does not restrict the inclusion of applicable age and familial status requirements in advertisments of dwellings which are intended and operated for occupancy by older persons and which constitute housing for older persons as defined by § 45.4 (relating to definitions).

The provisions of this § 45.8 amended under sections 1—6 of the Pennsylvania Human Relations Act (43 P. S. § § 954, 955, 959, 959.1, 959.3, 963 and 959.1).

The provisions of this § 45.8 adopted December 17, 1993, effective December 18, 1993, 23 Pa.B. 5901; amended July 7, 2000, effective July 8, 2000, 30 Pa.B. 3434. Immediately preceding text appears at serial page (234256).

History

• Authority: The provisions of this § 45.194 issued under sections 1—6 of the Pennsylvania Human Relations Act (43 P. S. § § 954, 955, 959, 959.1, 959.1 note, 959.3 and 963).
• Source: The provisions of this Subchapter C adopted October 9, 1998, effective October 10, 1998, 28 Pa.B. 5136, unless otherwise noted.

16 Pa. Code § 45.9 Governmental units.

(a) A governmental unit or political subdivision may not take an action which would have the effect of denying equal access to housing accommodations or commercial property within the subdivision, to any person on the basis of a protected class. It is not a defense to the action that the governmental act in question was the result, in whole or in part, of public opposition to the efforts of the member of the protected class to obtain housing accommodations or commercial property within the political subdivision.

(b) Activity by a political subdivision or governmental unit which is prohibited when based upon a person or person’s protected class includes, but is not limited to:

(1) An action, including the furnishing of services, which directly or indirectly affects housing accommodations or commercial property.

(2) An action taken by a unit of the political subdivision or governmental unit such as a zoning board or planning commission. Prohibited actions by the subdivision and by these boards and commissions include the consideration of the protected class of any person in the development or application of zoning and building codes, occupancy requirements, land use plans, comprehensive plans or long range plans.

The provisions of this § 45.9 adopted December 17, 1993, effective December 18, 1993, 23 Pa.B. 5901.

History

• Authority: The provisions of this § 45.194 issued under sections 1—6 of the Pennsylvania Human Relations Act (43 P. S. § § 954, 955, 959, 959.1, 959.1 note, 959.3 and 963).
• Source: The provisions of this Subchapter C adopted October 9, 1998, effective October 10, 1998, 28 Pa.B. 5136, unless otherwise noted.

16 Pa. Code § 45.10 Illegal inquiries.

(a) It is unlawful to make an inquiry to determine whether an applicant for a housing accommodation or commercial property, a person intending to reside in, occupy or use that housing accommodation or commercial property after it is sold, rented or made available, or any person associated with that a person, is a member of a particular protected class.

(b) It is unlawful to make an inquiry to determine whether an applicant for a housing accommodation or commercial property, a person intending to reside in, occupy or use that housing accommodation or commercial property after it is sold, rented or made available, or a person associated with that person, has a handicap or disability, or to make inquiry as to the nature or severity of a handicap or disability of the person. This subsection does not prohibit the following inquiries, if these inquiries are made of all applicants, whether or not they have handicaps or disabilities:

(1) An inquiry into an applicant’s ability to meet the requirements of ownership or tenancy.

(2) An inquiry to determine whether an applicant is qualified for a dwelling available only to persons with a handicap or particular type of handicap.

The provisions of this § 45.10 adopted December 17, 1993, effective December 18, 1993, 23 Pa.B. 5901.

History

• Authority: The provisions of this § 45.194 issued under sections 1—6 of the Pennsylvania Human Relations Act (43 P. S. § § 954, 955, 959, 959.1, 959.1 note, 959.3 and 963).
• Source: The provisions of this Subchapter C adopted October 9, 1998, effective October 10, 1998, 28 Pa.B. 5136, unless otherwise noted.

16 Pa. Code § 45.11 Coercion, threats and intimidation.

(a) It is an unlawful discriminatory activity to:

(1) Coerce a person, either orally, in writing, or by other means to deny or limit the benefits provided that person, in connection with the sale or rental of a housing accommodation or commercial property or in connection with a real estate-related transaction because of protected class.

(2) Threaten, intimidate or interfere with persons in their enjoyment of a housing accommodation or commercial property because of the protected class of any person including, but not limited to, visitors or associates of the persons.

(3) Threaten an employe or agent with dismissal or an adverse employment action, or take such adverse employment action, for any effort to assist a person seeking access to the sale or rental of a dwelling or seeking access to any residential real estate-related transaction, because of the protected class of the person seeking access.

(4) Intimidate, threaten, interfere or discriminate against any person because that person is engaging in activities designed to make other persons aware of, or encouraging other persons to exercise, rights granted or protected by this part.

(5) Retaliate, intimidate, threaten, interfere or discriminate against a person because that person has opposed a practice forbidden in the act, or because the individual has made a charge, testified or assisted in an investigation, proceeding or hearing under the act or any act which prohibits practices prohibited by the act.

(b) In addition to following the standard complaint procedure, when an owner or a prospective owner, occupant or prospective occupant or user or prospective user of housing accommodations or commercial property, or the agent, real estate broker or representative of any of them, is intimidated, harassed or threatened by individuals or groups because of the protected class of the owner or prospective owner or occupant or user or prospective occupant or user, from taking peaceful possession of or occupying or using the housing accommodations or commercial property which he has purchased, rented or intended to occupy or use or is prevented from enjoying peaceful possession or use, the Commission may assume jurisdiction, enlist the aid of law enforcement authorities and engage in an educational program within the immediate area in an effort to eliminate prejudice and to further good will.

The provisions of this § 45.11 adopted August 22, 1961; amended December 17, 1993, effective December 18, 1993, 23 Pa.B. 5901. Immediately preceding text appears at serial pages (167598) to (167599).

History

• Authority: The provisions of this § 45.194 issued under sections 1—6 of the Pennsylvania Human Relations Act (43 P. S. § § 954, 955, 959, 959.1, 959.1 note, 959.3 and 963).
• Source: The provisions of this Subchapter C adopted October 9, 1998, effective October 10, 1998, 28 Pa.B. 5136, unless otherwise noted.

16 Pa. Code § 45.12 Recordkeeping.

It is an unlawful discriminatory practice for any person to make or keep, unless required by Federal, State or local requirements, those requirements, including those contained in a consent order entered into with the Commission, a record or form of application containing questions which could tend to reveal a protected class in connection with a real estate related transaction or the selling, leasing or financing of housing accommodation or commercial property. The request for photographs of persons is considered a violation of this section.

The provisions of this § 45.12 adopted August 22, 1961; amended December 17, 1993, effective December 18, 1993, 23 Pa.B. 5901. Immediately preceding text appears at serial page (167599).

History

• Authority: The provisions of this § 45.194 issued under sections 1—6 of the Pennsylvania Human Relations Act (43 P. S. § § 954, 955, 959, 959.1, 959.1 note, 959.3 and 963).
• Source: The provisions of this Subchapter C adopted October 9, 1998, effective October 10, 1998, 28 Pa.B. 5136, unless otherwise noted.

16 Pa. Code § 45.13 Exemptions.

(a) Section 5(h) of the act (43 P. S. § 955(h)) does not prohibit the following:

(1) A religious or denominational institution or organization, or a charitable or educational organization which is operated, supervised or controlled by or in conjunction with a religious organization, from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose, to persons of the same religion or denomination, or from giving preference to these persons, unless membership in the religion is restricted because of race, color or national origin.

(2) A private club or fraternal organization, not in fact open to the public, which, incident to its primary purpose, provides lodgings which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of the lodgings to its members or from giving preference to its members.

(b) Nothing in section 5(h) of the housing provisions of the act, regarding age or familial status, applies with respect to housing for older persons.

(c) With the exception of the exemption for dwellings which constitute housing for older persons as defined by § 45.4(f) (relating to definitions), the exemptions to the act are not applicable to real estate firms, brokers, agents, sales people or an individual employed by any of them, when acting on behalf of them.

(d) The exemption for housing for older persons in which the housing is solely occupied by persons 62 years of age or older shall be met if all of the occupants are 62 years of age or older.

(e) In determining whether the exemption for housing for older persons in which the housing is provided under a Federal or State program is met, the Commission will adopt the finding of the Secretary of the Department of Housing and Urban Development as to whether the housing is designed or operated to assist elderly persons.

The provisions of this § 45.13 amended under sections 1—6 of the Pennsylvania Human Relations Act (43 P. S. § § 954, 955, 959, 959.1, 959.1 note and 963).

The provisions of this § 45.13 adopted December 17, 1993, effective December 18, 1993, 23 Pa.B. 5901; amended July 7, 2000, effective July 8, 2000, 30 Pa.B. 3434. Immediately preceding text appears at serial pages (234258) to (234260).

History

• Authority: The provisions of this § 45.194 issued under sections 1—6 of the Pennsylvania Human Relations Act (43 P. S. § § 954, 955, 959, 959.1, 959.1 note, 959.3 and 963).
• Source: The provisions of this Subchapter C adopted October 9, 1998, effective October 10, 1998, 28 Pa.B. 5136, unless otherwise noted.

16 Pa. Code § 45.14 Attorney fees.

(a) If, upon all the evidence at a public hearing, in cases alleging a violation of section 5(d), (e) or (h) or 5.3 of the act (43 P. S. § § 955(d), (e) and (h) and 955.3) when the underlying complaint is a violation of section 5(h) or 5.3, the Commission finds that a respondent has engaged in or is engaging in an unlawful discriminatory practice as defined in the act, the Commission may award attorney fees and costs to prevailing complainants. If the complainant in an appropriate housing case desires attorney fees and costs as a part of his remedy, evidence of the costs and fees shall be presented at the public hearing.

(b) If upon all the evidence at a public hearing, in cases alleging a violation of section 5(d), (e) or (h) or 5.3 where the underlying complaint is a violation of section 5(h) or 5.3 of the act, the Commission finds that a respondent has not engaged in or is not engaging in an unlawful discriminatory practice as defined in the act, the Commission may award attorney fees and costs to a prevailing respondent if the respondent proves that the complaint was brought in bad faith.

(1) If the respondent in an appropriate housing case desires attorney fees and costs, evidence of bad faith on the part of the complainant and evidence of the costs and fees shall be presented at the public hearing.

(2) If the respondent prevails and bad faith on the part of the complainant is established by a preponderance of the evidence, an order requiring the payment of attorney fees and costs may be issued against the complainant.

The provisions of this § 45.14 adopted December 17, 1993, effective December 18, 1993, 23 Pa.B. 5901.

History

• Authority: The provisions of this § 45.194 issued under sections 1—6 of the Pennsylvania Human Relations Act (43 P. S. § § 954, 955, 959, 959.1, 959.1 note, 959.3 and 963).
• Source: The provisions of this Subchapter C adopted October 9, 1998, effective October 10, 1998, 28 Pa.B. 5136, unless otherwise noted.

Chapter 47 Educational Institutions

16 Pa. Code § 47.1 Scope.

(a) This chapter delineates the rules governing the fair educational practices provisions of the Pennsylvania Human Relations Act (43 P. S. § § 951—963) and the Fair Educational Opportunities Act (24 P. S. § § 5001—5010).

History

• Authority: The provisions of this Chapter 47 issued under sections 6 and 7(d) of the Pennsylvania Human Relations Act (43 P. S. § § 956 and 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 47 adopted January 25, 1966, unless otherwise noted.

16 Pa. Code § 47.11 Jurisdiction of the Commission.

(a) Kindergartens, primary and secondary schools, high schools, academies, colleges and universities, extension courses and educational institutions operating within and under the supervision of the Commonwealth which are open to, accept or solicit the patronage of the general public, are subject to the jurisdiction of the Human Relations Commission (Commission) and shall provide equal educational opportunities for students seeking admission, without reference to race, religion, color, ancestry or national origin.

(b) Sections 3(1) and 5 of the Pennsylvania Fair Educational Opportunities Act (24 P. S. § § 5003(1) and 5005) vest jurisdiction in the Commission to deal with schools, colleges, universities and professional schools of post-secondary grade and also with secretarial, business, vocational or trade schools of secondary or post-secondary grade. Sections 4(l), 5(i) and 6 of the Pennsylvania Human Relations Act (43 P. S. § § 954(l), 955(i) and 956) give the Commission authority to deal with other schools enumerated in this chapter.

History

• Authority: The provisions of this Chapter 47 issued under sections 6 and 7(d) of the Pennsylvania Human Relations Act (43 P. S. § § 956 and 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 47 adopted January 25, 1966, unless otherwise noted.

16 Pa. Code § 47.21 Filing.

Every school subject to the provisions of the Pennsylvania Human Relations Act (43 P. S. § § 951—963) and the Pennsylvania Fair Educational Opportunities Act (24 P. S. § § 5001—5010) shall on or before September 1 of each year file with the Human Relations Commission (Commission) a written statement setting forth in detail the procedures it follows in admitting students. The statement shall include information disclosing who determines the admission policy, who executes the policy, what specific procedures are followed and what factors are taken into consideration in accepting or rejecting a student. New or amended statements shall be filed by a school if and when any changes in the admission procedures from those previously described in the written statement filed with the Commission are adopted by the school.

History

• Authority: The provisions of this Chapter 47 issued under sections 6 and 7(d) of the Pennsylvania Human Relations Act (43 P. S. § § 956 and 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 47 adopted January 25, 1966, unless otherwise noted.

16 Pa. Code § 47.31 Illegal questions.

A school may continue to use its supply of applications-for-admission forms which it had on hand when the Pennsylvania Human Relations Act (43 P. S. § § 951—963) and the Pennsylvania Fair Educational Opportunities Act (24 P. S. § § 5001—5010) came into effect, provided that illegal questions and entries therein are entirely blocked out. When the supply of forms is exhausted and new application-for-admission forms are printed, the illegal questions and entries shall be omitted and deleted from the newly printed forms.

History

• Authority: The provisions of this Chapter 47 issued under sections 6 and 7(d) of the Pennsylvania Human Relations Act (43 P. S. § § 956 and 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 47 adopted January 25, 1966, unless otherwise noted.

16 Pa. Code § 47.32 Filing.

Copies of the application-for-admission form and other written forms required to be filled out and signed by an applicant prior to admission shall be filed with the Human Relations Commission (Commission) on or before September 1 of each year by every school which is subject to the provisions of the Pennsylvania Human Relations Act (43 P. S. § § 951—963) and the Pennsylvania Fair Educational Opportunities Act (24 P. S. § § 5001—5010). If a change is made in a written form thus filed, the new or amended form shall be forthwith filed with the Commission by the school.

History

• Authority: The provisions of this Chapter 47 issued under sections 6 and 7(d) of the Pennsylvania Human Relations Act (43 P. S. § § 956 and 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 47 adopted January 25, 1966, unless otherwise noted.

16 Pa. Code § 47.41 Scope.

In clarification of the language, ‘‘to...deny facilities or otherwise discriminate...,’’ contained in section 4(a)(3) of the Pennsylvania Fair Educational Opportunities Act (24 P. S. § 5004(a)(3)), and in clarification of the language, ‘‘...to refuse, withhold from, or deny to any person... either directly or indirectly...,’’ contained in section 5(i)(1) of the Pennsylvania Human Relations Act (43 P. S. § 955(i)(1)), it shall be an unlawful discriminatory practice for a school subject to those statutes, because of the race, color, religious creed, ancestry or national origin of a student or group of students applying for admission or attending the school to do the following:

(1) Employ a quota system based upon race, color, religious creed, ancestry or national origin.

(2) Offer or impose a different or special terms and conditions with respect to scholarships, grants and loans given by the school itself.

(3) Deny an equal opportunity to participate in extracurricular activities, including intermural and interscholastic athletics as well as nonathletic activities.

(4) Give official school sanction to a social, honorary or professional fraternity, sorority or other student organization, if the student organization excludes or discriminates against an individual on account of race, color, religious creed, ancestry or national origin unless the student organization is founded for the express purpose of assisting or ministering to students of a particular religion.

(5) Administer dormitories and other housing operated by the school on a discriminatory or segregated basis, or to approve and list housing rooming places which are privately operated, unless the housing accommodations are open to students of the school without discrimination on account of race, color, religious creed, ancestry or national origin.

(6) Fail to make available to students on an equal basis a school-operated health or recreational facilities on or off the campus.

(7) Deny opportunities to students in making placements of the students as interns, student teachers or workers in industry, as part of the students’ educational program.

(8) Fail to make available to every student on an equal basis the full services of the placement office of the school, so that each student may be placed in the best position for which he is qualified in accordance with merit hiring principles.

(9) Permit the race, color, religious creed, ancestry or national origin of a student to be indicated on a transcript of record of the student or in a written or oral information given by the school when the same is made available to a prospective employer, employment agency or to a school of higher learning to which the student is applying for admission.

History

• Authority: The provisions of this Chapter 47 issued under sections 6 and 7(d) of the Pennsylvania Human Relations Act (43 P. S. § § 956 and 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 47 adopted January 25, 1966, unless otherwise noted.

16 Pa. Code § 47.51 Special circumstances.

A school subject to the provisions of the Pennsylvania Human Relations Act (43 P. S. § § 951—963) and the Pennsylvania Fair Educational Opportunities Act (24 P. S. § § 5001—5010) may submit to the Pennsylvania Human Relations Commission a request in writing for exemption from one or more of the provisions of the statutes and assign reasons for requesting the exemption. The Commission will consider the request so received, will determine in each instance whether or not to grant the request, and will promptly notify the school of its final decision.

History

• Authority: The provisions of this Chapter 47 issued under sections 6 and 7(d) of the Pennsylvania Human Relations Act (43 P. S. § § 956 and 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 47 adopted January 25, 1966, unless otherwise noted.

16 Pa. Code § 47.61 After admission.

A school subject to the provisions of the Pennsylvania Human Relations Act (43 P. S. § § 951—963) and the Pennsylvania Fair Educational Opportunities Act (24 P. S. § § 5001—5010) may properly ask its students, after admission, questions which reveal their race, color, religious creed, ancestry or national origin, provided that the information will not be used for the purpose of discriminating against the students because of their race, color, religious creed, ancestry or national origin.

History

• Authority: The provisions of this Chapter 47 issued under sections 6 and 7(d) of the Pennsylvania Human Relations Act (43 P. S. § § 956 and 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 47 adopted January 25, 1966, unless otherwise noted.

16 Pa. Code § 47.62 Prior to admission.

(a) Generally, it is not lawful for a school subject to the Pennsylvania Human Relations Act (43 P. S. § § 951—963) and the Pennsylvania Fair Educational Opportunities Act (24 P. S. § § 5001—5010) to ask questions of applicants, prior to admission, either orally or in writing, the answers to which may reveal the race, color, religious creed, ancestry or national origin of the applicants. However, where an educational institution is required to supply information to the Federal government concerning birth and citizenship of an applicant residing in a foreign country in order to expedite his entry into the United States, it shall be lawful to submit a questionnaire to the foreign applicant requesting the required information. The questionnaire shall be subject to the following:

(1) Clearly marked for the attention of the foreign student only.

(2) Not made part of or attached to the application-for-admission form commonly used by the educational institution.

(b) Lawful and unlawful inquiries directed to applicants shall include the following:

History

• Authority: The provisions of this Chapter 47 issued under sections 6 and 7(d) of the Pennsylvania Human Relations Act (43 P. S. § § 956 and 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 47 adopted January 25, 1966, unless otherwise noted.

16 Pa. Code § 47.71 Certification.

An educational institution which claims exemption under the terms of the Pennsylvania Fair Educational Opportunities Act (24 P. S. § § 5001—5010) as a religious or denominational educational institution shall file with the Human Relations Commission a written statement setting forth pertinent facts and claiming the exemption.

History

• Authority: The provisions of this Chapter 47 issued under sections 6 and 7(d) of the Pennsylvania Human Relations Act (43 P. S. § § 956 and 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 47 adopted January 25, 1966, unless otherwise noted.

16 Pa. Code § 47.72 Effect of exemption.

A school certified by the Human Relations Commission (Commission) as a ‘‘religious or denominational educational institution’’ may select its students exclusively or primarily from members of the religion or denomination and also may give preference in the selection to the members. Where a complaint has been filed against a religious or denominational educational institution, the Commission will have the authority to visit the institution for the purpose of investigating the facts relating to the complaint.

History

• Authority: The provisions of this Chapter 47 issued under sections 6 and 7(d) of the Pennsylvania Human Relations Act (43 P. S. § § 956 and 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 47 adopted January 25, 1966, unless otherwise noted.

16 Pa. Code § 47.73 Limitation of exemption.

A school certified by the Human Relations Commission (Commission) as a ‘‘religious or denominational educational institution’’ are not exempt from the provisions of the Pennsylvania Human Relations Act (43 P. S. § § 951—963) and the Pennsylvania Fair Educational Opportunities Act (24 P. S. § § 5001—5010) from affording students, otherwise qualified, an equal opportunity to attend therein without discrimination because of race, color, ancestry or national origin. The Commission will have jurisdiction of a complaint against a religious or denominational educational institution where the substance of the complaint alleges that students within the preferential group have been discriminated against because of their race, color, ancestry or national origin.

History

• Authority: The provisions of this Chapter 47 issued under sections 6 and 7(d) of the Pennsylvania Human Relations Act (43 P. S. § § 956 and 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 47 adopted January 25, 1966, unless otherwise noted.

16 Pa. Code § 47.74 Preadmission inquiries.

(a) A ‘‘religious or denominational educational institution’’ may request an applicant, prior to admission, to state whether he is a member of the particular religion or denomination as that of the institution to which the student is applying for admission. Thus, a Baptist-supported school may ask, prior to admission, ‘‘Are you Baptist?’’ and a Catholic-supported school may ask, prior to admission, ‘‘Are you Catholic?’’ but neither may ask, prior to admission, ‘‘What is your religion?’’

(b) A religious or denominational educational institution may not ask an applicant, prior to admission, questions which may reveal the race, color, ancestry or national origin of the applicant, nor may an institution request an applicant, prior to admission, to submit a photograph.

History

• Authority: The provisions of this Chapter 47 issued under sections 6 and 7(d) of the Pennsylvania Human Relations Act (43 P. S. § § 956 and 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 47 adopted January 25, 1966, unless otherwise noted.

Chapter 49 Contract Compliance

16 Pa. Code § 49.1 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Age—40 to 62 years, inclusive. Commission—The Pennsylvania Human Relations Commission created by the Pennsylvania Human Relations Act (43 P. S. § § 951—963). Commonwealth—The Commonwealth of Pennsylvania. Contractor—A contractor, supplier, vendor or other person who, through a contract or other arrangement, has received, is to receive, or is receiving public funds or in kind contributions from the Commonwealth; and shall include a subcontractor who performs under a State contract. Contractors, whether corporate or natural persons, are designated in this chapter by the use of third person neuter pronouns. Hearing examiner—An individual attorney, or Hearing Examiner Board including at least one attorney, designated to conduct hearings either by the Commission or by a state contracting agency. Labor organization—An organization which exists for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning terms or conditions of employment or of other mutual aid or protection in relation to employment. Minority, minorities, minority person or minority group persons—Persons who may be excluded or discriminated against because of race, color, religious creed, national origin, ancestry, sex or age. Nondiscrimination clause—The clause to be included in State contractual agreements or other arrangements under the provisions set forth in § 49.101 (relating to nondiscrimination clause). Order—Executive Order 1972-1. Person—A natural person, corporation, partnership, unincorporated association, State or local government and any agency, commission, authority, board or other instrumentality or political subdivision of government. State contract—An agreement, purchase order or arrangement or modification thereof between the Commonwealth or a State contracting agency, and a person to be paid in whole or in part, directly or indirectly, by public funds or in kind contributions from the Commonwealth. State contracting agency or agency—A department, agency, commission, authority, establishment or other instrumentality of the Commonwealth and any wholly or partially owned government corporation, subject to the jurisdiction of the Governor, which enters into contracts.

This section cited in 16 Pa. Code § 49.101 (relating to nondiscrimination clause).

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.2 Policy and purpose.

Nondiscrimination and equal opportunity are the policy of the Commonwealth and the Commission in all its decisions, programs and activities. The purpose of this chapter is to achieve the aims of the United States and Pennsylvania Constitutions, Executive Order 1984-1 codified at 4 Pa. Code § § 1.161—1.167 (relating to affirmative action), the Pennsylvania Human Relations Act (43 P. S. § § 951—962.2), and 43 P. S. § 153, by assuring that all persons are accorded equal employment opportunity without regard to race, color, national origin, ancestry, religious creed, age or sex. This chapter applies to the contracting agencies of this Commonwealth and to contractors who perform under State contracts.

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.11 Generally.

The Director of Contract Compliance, a designee of the Commission, is the officer responsible for the administration of a uniform contract compliance program for equal employment opportunity for all State agencies under the direction of the Commission.

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.12 Supervision.

Though each agency is primarily responsible for obtaining compliance with the provisions of this chapter and has management control over its officers and employes, the Commission, through the Director of Contract Compliance, will supervise, monitor and coordinate programs of the agency contract compliance officers and provide uniform guidelines and procedures, when appropriate, for the performance of their duties.

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.13 Review of compliance program.

The Director of Contract Compliance will review, periodically, the operation of the contract compliance program and take whatever action is necessary to assure the proper implementation of this chapter.

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.14 Requesting information.

The Director of Contract Compliance may request from agency contract compliance officers information and assistance that may be necessary to enforce this chapter.

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.15 Hearing examiners.

The Attorney General will, in consultation with the Director of Contract Compliance review the qualifications of each of the contracting agency hearing examiners in order to determine their competence to adjudicate questions of employment discrimination, and will approve the hearing examiners as are found qualified to hold hearings under this chapter.

This section cited in 16 Pa. Code § 49.64 (relating to certified examiners).

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.16 Reports.

The Director of Contract Compliance will act under the direction of the Commission, and make periodic, formal reports to the Commission that the Commission will require as to the progress of implementation of the provisions of this chapter. The Commission will forward a copy of these formal reports to the Governor.

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.17 Order of imposition of sanctions.

If sanctions are recommended against contractors involving coordinated action by more than one Commonwealth agency, the Director of Contract Compliance will approve the imposition of the sanctions prior to their transmittal of a notice of noncompliance under § 49.62 (relating to notice of noncompliance).

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.18 Complaints by employes.

Complaints by employes or applicants for employment of a State contractor received by the Director of Contract Compliance will be referred to the Commission for investigation. The Commission shall forward the results of an investigation to the Director of Contract Compliance who may take whatever action is authorized by the provisions of this chapter.

This section cited in 16 Pa. Code § 49.65 (relating to investigation of complaints).

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.19 Cooperation with other agencies.

The Director of Contract Compliance shall make every effort, directly and through State contracting agencies, other interested State, Federal and local agencies, State recipients and all other available instrumentalities including the Commission to cause a contractor or labor union engaged in work under State contracts to cooperate in the implementation of this chapter. The Director of Contract Compliance may, in appropriate cases, notify the Commission and the respective contracting agencies whenever the Director of Contract Compliance has evidence that the practices of any contractor or labor union are in violation of the Pennsylvania Human Relations Act (43 P. S. § § 951—963), 43 P. S. § 153, this chapter and other related State laws. The Director of Contract Compliance may also, in appropriate cases, notify the Federal Equal Employment Opportunity Commission, the Office of Federal Contract Compliance or the Federal agency to which the OFCC has specifically delegated its contract compliance authority when the Director has evidence that the practices of a contractor or labor union violate the Federal Civil Rights Act of 1964 (42 U.S.C.A. § 2000 et seq.) or other related Federal laws.

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.20 Meetings with Contract Compliance Advisory Board.

The Director of Contract Compliance shall meet regularly with the Contract Compliance Advisory Board to receive the assistance, advice and recommendations of the Board on the implementation of the Contract Compliance Program, and to report on the implementation of that program.

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.31 Generally.

The head of a Commonwealth contracting agency shall designate a qualified agency contract compliance officer and other qualified staff as necessary.

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.32 Responsibilities.

An agency contract compliance officer shall be primarily responsible for obtaining compliance with the nondiscrimination clause, this chapter and orders issued by the Director of Contract Compliance.

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.33 Access to information.

An agency contract compliance officer shall have free access to documents and other sources of information relevant to the implementation of the provisions of this chapter within the officer’s agency, but the contents of the documents will not be disclosed to a person except for a purpose directly related to the implementation of the provisions of this chapter.

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.34 Cooperation with the Director of Contract Compliance.

An agency contract compliance officer shall cooperate with the Director of Contract Compliance and shall furnish the information, reports and assistance as the Director of Contract Compliance may require in the implementation of this chapter. An agency contract compliance officer shall furnish the Director of Contract Compliance with copies of all official communications and official notices or other documents as shall be required by the Director of Contract Compliance.

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.35 Information concerning compliance by contractors.

An agency contract compliance officer may, in accordance with priorities established in cooperation with the Director of Contract Compliance, obtain and inspect relevant documents and papers of contractors doing business with that officer’s agency, including any information regarding existing affirmative action programs, reasonably necessary to determine whether or not the contractor is in compliance with this chapter. To the greatest extent possible, agency contract compliance officers shall attempt to minimize the burden and expense of the requirements for information by the following:

(1) Utilizing forms and standards similar to those used by the Federal equal employment opportunity programs.

(2) Accepting forms and reports prepared for Federal agencies where the information contained therein is sufficient for the Commonwealth’s purposes.

(3) Minimizing duplication of programs and procedures.

(4) Inspecting and copying relevant documents contained in a contractor’s files rather than requiring the contractor to provide them.

(5) Accepting as in compliance with the provisions of this chapter an ‘‘affirmative action plan’’ or ‘‘hometown’’ plan approved by the Federal authorities or a plan issued by a court order or decree, unless it can be clearly demonstrated that the plans are not in conformity with the provisions of this chapter.

This section cited in 16 Pa. Code § 49.101 (relating to nondiscrimination clause).

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.36 Compliance review.

(a) An agency contract compliance officer shall receive information to determine whether contractors are in compliance with this chapter, and the nondiscrimination clause required by § 49.101 (relating to nondiscrimination clause). A determination by one State contracting agency that a contractor is in compliance shall create a presumption of compliance as to all other State contracting agencies.

(b) The purpose of a compliance review is to determine if a State contractor maintains nondiscriminatory hiring and employment practices under which applicants are employed and employes are placed, trained, upgraded, promoted and otherwise treated during employment without regard to race, color, religious creed, national origin, ancestry, sex or age. If a contractor is operating under an existing affirmative action plan, compliance review will also seek to determine whether the contractor is making a good faith effort to comply with that plan. A compliance review shall consist of a comprehensive analysis and evaluation of each aspect of the aforementioned policies and practices, and conditions resulting therefrom. The review shall consider, inter alia, whether minority groups and women are currently being discriminated against in any one or more job classification. Classification shall mean one or more groups of jobs having similar content, wage rates and opportunities.

(c) In determining whether minorities and women are being discriminated against in a job classification the following factors shall be considered, where relevant, in accordance with the standards and definitions as the Commission shall promulgate and publish:

(1) The minority and female population of the labor area surrounding the facility.

(2) The size of the minority and female employment and unemployment force in the labor area surrounding the facility.

(3) The percentage of the minority and female work force as compared with the total work force in the immediate labor areas.

(4) The general availability of minorities and women having requisite skills in the immediate labor area.

(5) The availability of minorities and women having requisite skills in an area in which the contractor can reasonably recruit.

(6) The availability of promotable and transferable minorities and women within the facility, except where it is the general policy of the contractor to transfer and/or promote personnel in certain job classifications within a larger organizational unit, in which case the availability of qualified minorities and women within that unit must be considered;

(7) The existence of training institutions capable of training persons in the requisite skills.

(8) The degree of training which the contractor is reasonably able to undertake as a means of making all job classifications available to otherwise qualified minorities and women.

(d) Compliance review shall consist of a thorough analysis of each contractor’s employment practices and the effects of such practices. Exact proportional representation of minority and female employes is not required by the provisions of this chapter. Good faith in implementing nondiscriminatory policies, taking into account the effects of past discrimination, is required.

This section cited in 22 Pa. Code § 32.5 (relating to compliance review).

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.37 Notifying contractor.

(a) After review, the agency contract compliance officer shall notify the contractor whether or not it has been found to be in compliance. If deficiencies are found to exist as a result of a compliance review, reasonable efforts shall be made to secure compliance through conciliation and persuasion. The commitment may include preparation and implementaion of an affirmative action program as described in this chapter.

(b) The commitments shall include the precise action to be taken and dates for completion. The time period estimated shall be no longer than the minimum period necessary to effect the changes.

(c) A contractor shall be considered in compliance if it makes every good faith effort to keep the commitments.

This section cited in 4 Pa. Code § 68.1 (relating to summary of controlling law and regulation); 16 Pa. Code § 49.51 (relating to purpose); and 16 Pa. Code § 49.62 (relating to notice of noncompliance).

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.38 Bidders list.

(a) If an agency requires bidders to be prequalified, the agency contract compliance officer shall immediately begin, under the supervision of the Director of Contract Compliance, to establish a program to require compliance with this chapter by all persons on the prequalified bidder’s list by the date as shall be determined by the Director of Contract Compliance in consultation with the Commission and the agency. A person not in compliance as of the date shall be subject to administrative hearing and adjudication in compliance with the 2 Pa.C.S. § § 501—508 and 701—704 (relating to practice and procedure of Commonwealth agencies and judicial review of Commonwealth agency action), deemed unqualified and excluded from the bidder’s list until the time as their qualification is established.

(b) It shall be the duty of a State agency to award and administer contracts in a nondiscriminatory manner. In doing so, it shall be permissible for the agency to take affirmative action to attract minority and female contractors, including specialized recruiting drives, publicity and assistance in bid preparation to ameliorate an imbalance caused by prior discrimination resulting in the exclusion or under-representation of the contractors.

(c) In publication of invitations to bid, each agency shall advertise in minority as well as general news media. r

(d) Nothing in this subsection shall be interpreted to detract from the concept of competitive bidding.

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.41 General.

The commission shall establish and appoint members of a board to be known as the Contract Compliance Advisory Board. The Board will be composed of representatives of labor unions, state contractors and other interested groups. The purpose of the board will be to assist and advise the Commission in its implementation of the contract compliance program.

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.51 Purpose.

(a) An affirmative action program is a set of specific and result oriented procedures to which a contractor shall apply every good faith effort. The objective of those procedures and efforts is to assure equal employment opportunity. An acceptable affirmative action program shall include an analysis of areas within which the contractor may be discriminating, unintentionally or otherwise, against minority groups and women; and further goals and timetables to which the good faith efforts of the contractor shall be directed to correct the deficiencies and, thus to eliminate all discrimination against minority groups and women at all levels and in all segments of its work force. A necessary prerequisite to the development of a satisfactory affirmative action program is the identification and analysis of problem areas of minority group (including women) employment, and an evaluation of opportunities for utilization of minority groups and women personnel.

(b) Not all State contractors are required to submit an affirmative action program. Affirmative action programs not voluntarily agreed to through conciliation and persuasion can be imposed by order only on those State contractors found deficient under § 49.37 (relating to notifying contractor) and who are so adjudicated after a hearing in accordance with § 49.62 (relating to notice of noncompliance).

This section cited in 4 Pa. Code § 68.1 (relating to summary of controlling law and regulations); and 22 Pa. Code § 32.5 (relating to compliance review).

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.52 Content.

Effective affirmative action programs should contain, but not necessarily be limited to, the following:

(1) Development or reaffirmation of the contractor’s equal employment opportunity policy in all personnel actions.

(2) Formal internal and external dissemination of the contractor’s policy.

(3) Establishment of responsibilities for implementation of the contractor’s affirmative action program.

(4) Identification of problem areas (deficiencies) by organization units and job classification, including timetables for completion. Goals may not be rigid and inflexible, nor may they be quotas which must be met, but must be targets reasonably attainable by applying every good faith effort to make all aspects of the entire affirmative action program work.

(5) Development and execution of action oriented programs designed to attain established goals and objectives.

(6) Design and implementation of internal audit and reporting systems to measure effectiveness of the total program.

(7) Compliance of personnel policies and practices with the Employe Selection Procedures and Sex Discrimination Guidelines of the Commission.

(8) Solicitation of the support and cooperation of local and national community action programs and community service programs, designed to improve the employment opportunities of minorities and women.

(9) Consideration of minorities and women not currently in the work force having requisite skills who may be recruited through affirmative action measures.

(10) In establishing timetables to meet goals and commitments, the contractor shall consider the anticipated expansion, contraction, and turnover of and in the work force.

(11) Goals, timetables, and affirmative action commitments shall be designed to correct any identifiable deficiencies.

(12) The goals and timetables, with supporting data and the analysis thereof, shall be part of the contractor’s written affirmative action program. This data shall include, but not be limited to, progression line charts, seniority rosters, applicant flow data, and applicant rejection ratios indicating minority and sex status.

This section cited in 4 Pa. Code § 68.1 (relating to summary of controlling law and regulations); and 22 Pa. Code § 32.5 (relating to compliance review).

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.61 Compliance status.

(a) Each contractor’s compliance posture shall be reviewed and determined by reviewing its employment practices and their effects.

(b) If an affirmative action program exists, no contractor’s compliance status shall be judged solely by whether or not it reaches its goals or meets its timetables. Rather, a contractor’s compliance posture may be determined by reviewing the contents of its program, the extent of its adherence to the program, and its good faith efforts to make the program work toward a realization of goals within the timetables set for completion.

This section cited in 4 Pa. Code § 68.1 (relating to summary of controlling law and regulations).

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.62 Notice of noncompliance.

(a) If efforts to secure compliance with this chapter or with the contract nondiscrimination clause through conciliation and persuasion have failed or if the agency contract compliance officer finds that the contractor has not made the requisite good faith effort to meet its commitments made under § 49.37 (relating to notifying contractor), the agency contract compliance officer shall issue a notice of noncompliance to the contractor giving it 30 days after receipt of that notice to show cause why the imposition of sanctions under this chapter should not be instituted. The notice shall set forth the specific deficiencies which constitute the basis of the asserted noncompliance.

(b) During the show-cause period of 30 days, the agency contract compliance officer shall continue, through conciliation, mediation and persuasion, to resolve the deficiencies which led to the determination of noncompliance.

(c) If the contractor is unable to show good cause for its failure to resolve the deficiencies, the Commonwealth contracting agency or the Commission shall issue a notice of proposed imposition of sanctions. The notice shall constitute an order to show cause within the meaning of 1 Pa. Code § 35.14 (relating to orders to show cause). The contractor shall be entitled to all of the rights provided by 2 Pa.C.S. § § 501—508 and 701—704 (relating to practice and procedure of Commonwealth agencies and judicial review of Commonwealth agency action) and the regulations promulgated thereunder with respect to hearing and appeals. If a request for hearing is not made within the time provided by law, the sanctions described in the notice shall be immediately imposed unless compliance is obtained by agreement.

This section cited in 16 Pa. Code § 49.17 (relating to order of imposition of sanctions); 16 Pa. Code § 49.51 (relating to purpose); and 16 Pa. Code § 49.64 (relating to certified examiners).

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.63 Determination of compliance status.

The Commission, acting through the Director of Contract Compliance, may assume sole responsibility for the determination of the compliance status of a contractor at any stage of the compliance procedure. A hearing held by the Commission under the provisions of this chapter shall be conducted by a hearing examiner.

This section cited in 16 Pa. Code § 49.71 (relating to generally).

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.64 Certified examiners.

No hearing may be held under § 49.62(c) (relating to notice of noncompliance) by a hearing examiner not certified as qualified by the Attorney General under § 49.15 (relating to hearing examiners).

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.65 Investigation of complaints.

The agency contract compliance officer shall forward any formal complaints alleging discrimination addressed to him by employes or applicants for employment of a State contractor, to the Commission for investigation under § 49.18 (relating to complaints by employes).

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.66 Notice.

Two copies of notices of compliance, noncompliance or proposed imposition of sanctions shall be sent to the Director of Contract Compliance when the notices are forwarded to a contractor.

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.71 Generally.

(a) In accordance with the rules, regulations or orders that the Commission may issue or adopt, the agency or the Commission may, after hearing and adjudication, impose one or more of the sanctions enumerated in subsection (b) as appropriate, to attain full and effective enforcement. If the Commission assumes responsibility for compliance review under § 49.63 (relating to determination of compliance status) the Commission may, after hearing and adjudication, order the imposition of appropriate sanctions and require the Commonwealth contracting agency to implement the sanctions.

(b) The Commission or agency may proceed as follows:

(1) Publish or cause to be published the names of contractors and labor unions which it has determined have complied or have failed to comply with the provisions of this chapter or with rules, regulations and orders of the Commission or the Agency.

(2) Recommend to the Attorney General that, in cases where there is substantial or material violation of this chapter, or the contract nondiscrimination clause, appropriate proceedings be brought to enforce such provisions, including the enjoining, within the limitations of applicable law, of organizations, individuals, or groups who prevent directly or indirectly, compliance with provisions of this chapter.

(3) Recommend to the appropriate law enforcement official that criminal proceedings be brought for willfully furnishing false information to any state contracting agency or the Commission, as the case may be.

(4) Provide for the fixed-period suspension of the remaining obligations under the contract pending compliance by the contractor with this chapter and the termination of the remaining obligations under the contract; provided that the failure of the contractor to comply with the adjudication within the fixed period stated in the order (but not fewer than 30 days) shall be considered a material breach and shall give the Commonwealth the right to bring an action against the contractor and the surety on the contractor’s bond to recover expenses incurred in reletting the contract, delay in performance, or other verifiable damages.

(5) Provide that a Commonwealth contracting agency shall refrain from entering into further State contracts or extensions, or other modifications of existing contracts with a noncomplying State contractor and that a State contracting agency which requires prequalification of bidders shall revoke the qualification of a noncomplying State contractor until the contractor has satisfied the agency or the Commission that it has established and shall carry out personnel and employment policies in compliance with this chapter.

This section cited in 4 Pa. Code § 68.2 (relating to imposition of sanctions).

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.101 Nondiscrimination clause.

(a) Every State contract as defined in § 49.1 (relating to definitions) shall contain a nondiscrimination clause barring discrimination in employment because of race, color, religious creed, national origin, ancestry, sex or age.

(b) Every State contract between a Commonwealth agency engaged in granting financial assistance, including but not limited to State loans or State guarantees of student loans, and a bank, banking institution or other organization shall contain a nondiscrimination clause barring discrimination in employment because of race, color, religious creed, national origin, ancestry, sex or age.

(c) Every State contract for the deposit of Commonwealth funds in a bank, banking institution or trust company shall, upon the approval of the Board of Finance and Revenue, contain a nondiscrimination clause barring discrimination in employment because of race, color, religious creed, national origin, ancestry, sex or age.

(d) The nondiscrimination clause to be incorporated into every contractual agreement or other arrangement shall be in the following form:

During the term of this contract, Contractor agrees as follows:

1. Contractor shall not discriminate against any employe, applicant for employment, independent contractor, or any other person because of race, color, religious creed, ancestry, national origin, age, or sex. Contractor shall take affirmative action to ensure that applicants are employed, and that employes or agents are treated during employment, without regard to their race, color, religious creed, ancestry, national origin, age, or sex. Such affirmative action shall include, but is not limited to, the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training. Contractor shall post in conspicuous places, available to employes, agents, applicants for employment and other persons, a notice to be provided by the contracting agency setting forth the provisions of this nondiscrimination clause.

2. Contractor shall in advertisements or requests for employment placed by it or on its behalf state all qualified applicants will receive consideration for employment without regard to race, color, religious creed, ancestry, national origin, age, or sex.

3. Contractor shall send each labor union or workers’ representative with which it has a collective bargaining agreement or other contract or understanding, a notice advising said labor union or workers’ representative of its commitment to this nondiscrimination clause. Similar notice shall be sent to every other source of recruitment regularly utilized by Contractor.

4. It shall be no defense to a finding of a noncompliance with Contract Compliance Regulations issued by the Pennsylvania Human Relations Commission or this nondiscrimination clause that Contractor had delegated some of its employment practices to any union, training program, or other source of recruitment which prevents it from meeting its obligations. However, if the evidence indicates that the Contractor was not on notice of the third-party discrimination or made a good faith effort to correct it, such factor shall be considered in mitigation in determining appropriate sanctions.

5. Where the practices of a union or any training program or other source of recruitment will result in the exclusion of minority group persons, so that Contractor will be unable to meet its obligations under the Contract Compliance Regulations issued by the Pennsylvania Human Relations Commission or this nondiscrimination clause, Contractor shall then employ and fill vacancies through other nondiscriminatory employment procedures.

6. Contractor shall comply with the Contract Compliance Regulations of the Pennsylvania Human Relations Commission, 16 Pa. Code Chapter 49 and with all laws prohibiting discrimination in hiring or employment opportunities. In the event of Contractor’s noncompliance with the non-discrimination clause of this contract or with any such laws, this contract may, after hearing and adjudication, be terminated or suspended, in whole or in part, and Contractor may be declared temporarily ineligible for further Commonwealth contracts, and such other sanctions may be imposed and remedies invoked as provided by the Contract Compliance Regulations.

7. Contractor shall furnish all necessary employment documents and records to, and permit access to its books, records and accounts by, the contracting agency and the Human Relations Commission, for purposes of investigation to ascertain compliance with the provisions of the Contract Compliance Regulations, pursuant to § 49.35 (relating to information concerning compliance by contractors). If Contractor does not possess documents or records reflecting the necessary information requested, it shall furnish such information on reporting forms supplied by the contracting agency or the Commission.

8. Contractor shall actively recruit minority subcontractors or subcontractors with substantial minority representation among their employes.

9. Contractor shall include the provisions of this nondiscrimination clause in every subcontract, so that such provisions will be binding upon each Subcontractor.

10. The terms used in this nondiscrimination clause shall have the same meaning as in the Contract Compliance Regulations issued by the Pennsylvania Human Relations Commission, 16 Pa. Code Chapter 49.

11. Contractor obligations under this clause are limited to the Contractor’s facilities within Pennsylvania, or, where the contract is for purchase of goods manufactured outside of Pennsylvania, the facilities at which such goods are actually produced.

Injunction

A preliminary injunction against the enforcement of certain paragraphs of the nondiscrimination clause cannot be granted if the court does not find that immediate and irreparable harm would result from the enforcement, or if the court errs in its finding that immediate and irreparable harm would result. Hospital Association of Pennsylvania v. Department of Public Welfare, 433 A.2d 450, 455 (Pa. 1981).

The enforcement of the provisions of paragraph 9 of the nondiscrimination clause would not necessarily result in immediate and irreparable harm by requiring contractors to reduce their previously oral agreements to writings which include the nondiscrimination clause, since there is no statutory or regulatory requirement for such reduction to writing; the fact that almost all of the original complaining contractors are complying with paragraph 9 further supports the conclusion that there is no immediate and irreparable harm. Hospital Association of Pennsylvania v. Department of Public Welfare, 433 A.2d 450 (Pa. 1981).

This section cited in 4 Pa. Code § 68.61 (relating to nondiscrimination clause; compliance prequalification); 16 Pa. Code § 49.1 (relating to definitions); and 16 Pa. Code § 49.36 (relating to compliance review).

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

16 Pa. Code § 49.102 Effective date.

A State contracting agency shall immediately take all appropriate action necessary to implement this chapter.

History

• Authority: The provisions of this Chapter 49 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), as revised by Executive Order 1972-1, dated December 6, 1972, unless otherwise noted.
• Source: The provisions of this Chapter 49 adopted March 8, 1974, effective March 9, 1974, 4 Pa.B. 409; amended March 7, 1975, effective March 8, 1975, 5 Pa.B. 434, unless otherwise noted.

Chapter 51 Discrimination with Respect to Abortion and Sterilization

16 Pa. Code § 51.1 Purpose and policy.

(a) The purpose of this chapter is to assist persons and institutions subject to the provisions of section 5.2 of the act (43 P. S. § 955.2) to comply with the act of October 10, 1973 (P. L. 278, No. 78) (43 P. S. § § 955.2 and 961) prohibiting discrimination with respect to abortion and sterilization. This chapter will show what courses of conduct are considered by the Commission to be in violation of the act. Persons and institutions subject to the provisions of the act should govern themselves accordingly.

(b) It is the policy of the Commission, under the provisions of the 1973 amendment to the act, to prevent and eliminate discrimination based upon refusal or willingness to participate in abortion or sterilization procedures, consistent with the obligation of hospitals and other health care facilities to provide competent medical care.

History

• Authority: The provisions of this Chapter 51 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 51 adopted March 11, 1977, 7 Pa.B. 699, unless otherwise noted.

16 Pa. Code § 51.2 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Abortion—The termination of human pregnancy with an intention other than to produce a live birth or to remove a dead fetus. Act—The Pennsylvania Human Relations Act (43 P. S. § § 951—963). Commission—The Pennsylvania Human Relations Commission. Moral, religious, or professional grounds—The deeply held beliefs, ethical rules and standards of conduct and practice of a person which impose a duty of conscience concerning the performance of or participation in abortion or sterilization procedures. Professional grounds include judgments of a medical nature regarding the performance of or participation in abortion or sterilization procedures. Public hospital or public health care facility—A hospital or health care facility whose funding, financing, organization, administration, operations, policies or location have imbued it with State action, including but not limited to the following:

(i) Nonproprietary municipal and county hospitals and health care facilities that are community controlled, for example, Philadelphia General Hospital.

(ii) Hospitals and health care facilities controlled by the State related universities of the Commonwealth—Temple University, the University of Pennsylvania, the University of Pittsburgh and Pennsylvania State University.

(iii) Medical facilities controlled by any Commonwealth-owned institution of higher learning that perform gynecological surgery.

(iv) State General Hospitals that are regulated by sections 321—323 of the act of June 13, 1967 (P. L. 31, No. 21) (62 P. S. § § 321—323). Absent the existence of the indicia of State action, denominational hospitals and health care facilities will be deemed to be nonpublic. Neither will an otherwise private hospital or health care facility be deemed to be public merely through the receipt of Federal funds under either the Hill-Burton Act (42 U.S.C.A. § 291 et seq.) or Title XVIII or Title XIX of the Social Security Act (42 U.S.C.A. § § 1395 et seq. and 1396 et seq. ). Receipt of such funds, however, along with other indicia of state action may establish that such facility is a public hospital or public health care facility. The definitions of a ‘‘public hospital or public health care facility,’’ and of a ‘‘place of public accommodation, resort or amusement,’’ contained in section 4(1) of the act (43 P. S. § 954(1)), are independent of and have no effect upon each other. Separate clinic of a health care facility—Any area of a hospital or health care facility designated or made available by the governing or administrative body of such facility for the performance of abortion, sterilization, or related procedures. Stated ethical policy—A written statement, declaration, or resolution with respect to abortion or sterilization based upon moral judgments or standards of conduct and practice to be followed in the provision of health care services by a hospital or other health care facility. Sterilization—The interruption and termination of the reproductive capabilities of a person with the intention of making that person incapable of the reproduction of human life.

This section cited in 28 Pa. Code § 101.164 (relating to civil rights compliance records).

History

• Authority: The provisions of this Chapter 51 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 51 adopted March 11, 1977, 7 Pa.B. 699, unless otherwise noted.

16 Pa. Code § 51.31 Adoption and substance of stated ethical policy.

(a) Section 5.2(a) of the act (43 P. S. § 955.2(a)) permits a hospital or other health care facility to make a determination, in the form of a stated ethical policy, with regard to whether such institution will permit or refuse to permit the performance of abortion or sterilization procedures upon its premises. Pursuant to ‘‘Abortion and Sterilization in Public Hospitals,’’ Opinion No. 75-16 of the Attorney General, appearing at 5 Pa.B. 1383, no public hospital or other public health care facility may make such a determination, in the form of a stated ethical policy or otherwise, which would prohibit upon its premises the performance of sterilization procedures or the performance of abortion procedures prior to the last trimester of pregnancy.

(b) No nonpublic hospital or other nonpublic health care facility shall be required to or held liable for refusal to perform or permit the performance of abortion or sterilization contrary to its stated ethical policy. Such policy shall consist of a written statement which reflects an official resolution or declaration of a board of directors or other governing body of a nonpublic hospital or other nonpublic health care facility charged with the responsibility for over-all administration and policy determination for such institution. Such policy shall be adopted by a board of directors or other governing body of such institution in the same manner as and following the procedures used for the consideration and adoption of all other policy decisions concerning the rendering of health care service by such institution.

(c) The stated ethical policy of a hospital or other health care facility shall expressly set forth the policy of that institution with regard to the performance of abortion or sterilization procedures in such hospital or facility. The policy may, in addition, be based upon specified and well-defined moral, religious, or professional grounds. The adoption of a stated ethical policy by a nonpublic hospital or other nonpublic health care facility, the effect of which would be to refuse to permit the performance of abortion or sterilization procedures upon its premises, must have occurred subsequent to January 22, 1973, the date when the United States Supreme Court rendered its decisions in the cases concerning the right to abortion: Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973).

(d) If a nonpublic hospital or other nonpublic health care facility desires to retain, as its official policy, a stated ethical policy which existed prior to such date and which refuses to permit the performance of abortion or sterilization procedures upon its premises, such policy must be reaffirmed or restated subsequent to such date.

(e) The stated ethical policy of a hospital or other health care facility shall be made known to all persons employed by or participating in medical or other services provided by such institution, and such policy shall be freely available and conspicuously posted for public inspection.

(f) In the absence of a stated ethical policy as set forth in this section, it will be presumed that a nonpublic hospital or other nonpublic health care facility possesses no stated ethical policy regarding the performance of abortion or sterilization procedures in such institution.

This section cited in 16 Pa. Code § 51.32 (relating to objection to performance of abortion or sterilization by nonpublic hospitals or other nonpublic health care facilities on moral, religious or professional grounds); and 28 Pa. Code § 119.22 (relating to referral).

History

• Authority: The provisions of this Chapter 51 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 51 adopted March 11, 1977, 7 Pa.B. 699, unless otherwise noted.

16 Pa. Code § 51.32 Objection to performance of abortion or sterilization by nonpublic hospitals or other nonpublic health care facilities on moral, religious or professional grounds.

Under the provisions of section 5.2(b)(1) of the act (43 P. S. § 955.2(b)(1)), and of Opinion No. 75-16 of the Attorney General, appearing at 5 Pa.B. 1383, any nonpublic hospital or other nonpublic health care facility which objects to the performance of abortion or sterilization procedures on moral, religious, or professional grounds and which, as a result, refuses to perform or permit the performance of abortion or sterilization procedures in such institution shall not be subject to the imposition of penalties; disciplinary action; or denial or limitation of public funds, licenses, certifications, degrees, or other approvals or documents of qualification under the provisions of the act. The objections of a nonpublic institution to the performance of abortion or sterilization procedures in its facilities on such grounds shall be clearly set forth in writing and may be contained within the stated ethical policy of such institution, in its articles of incorporation, by-laws, deed of trust, or official resolution of the board of directors or other governing body of a nonpublic hospital or other nonpublic health care facility, and such objections shall comply with the requirements as set forth in § 51.31 (relating to adoption and substance of stated ethical policy). When such objections are so stated, they shall be reprinted and made known to all persons employed by or participating in medical or other services provided by such institution and shall be made freely available and conspicuously posted for public inspection.

History

• Authority: The provisions of this Chapter 51 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 51 adopted March 11, 1977, 7 Pa.B. 699, unless otherwise noted.

16 Pa. Code § 51.33 Statement or other manifestation of attitude with respect to abortion or sterilization.

(a) Any hospital or other health care facility which makes a statement, sets forth a position, or otherwise demonstrates a manifestation of attitude with respect to abortion or sterilization, as set forth in section 955.2(b)(1) of the act (43 P. S. § 955.2(b)(1)) shall not be subject to the imposition of penalties or disciplinary action or the denial or limitation of public funds, licenses, certifications, degrees, or other approvals or documents of qualification as a result of such statement, position or other manifestation of attitude. Such statement or other manifestation of attitude with respect to abortion or sterilization may express a willingness or an objection to the performance of abortion or sterilization procedures, except that no public hospital or other public health care facility may make such a statement or other manifestation of attitude objecting to or prohibiting upon its premises the performance of sterilization procedures or the performance of abortion procedures prior to the last trimester of pregnancy.

(b) A manifestation of attitude by a hospital or a health care facility shall include, but shall not be limited to, any official or unofficial policy of such institution with respect to abortion or sterilization, any course of conduct in which such institution or its administration have engaged subsequent to January 22, 1973, or the adoption or initiation of any procedure which contemplates or implements, as a general policy, the performance or refusal to perform abortion or sterilization procedures in such institution.

History

• Authority: The provisions of this Chapter 51 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 51 adopted March 11, 1977, 7 Pa.B. 699, unless otherwise noted.

16 Pa. Code § 51.41 Written objection to performance, participation in or cooperation in abortion or sterilization procedures.

(a) Pursuant to section 5.2(a) of the act (43 P. S. § 955.2(a)), any physician, nurse, staff member, or employe of a hospital or other health care facility who objects to performing, participating in, or cooperating in abortion or sterilization procedures on moral, religious or professional grounds and who, for such reasons, does not wish to participate or cooperate in the performance of such procedures shall clearly set forth such objection in writing and shall submit the objection to the board of directors, governing body, or administrator in charge of such institution. Unless such a written objection is submitted, under section 5.2(a) of the act (43 P. S. § 955.2(a)), a staff member will be presumed to have no objection to participation or cooperation in the performance of abortion or sterilization procedures on moral, religious, or professional grounds, and shall not be subject to the protections set forth in that section. If such a written objection is duly submitted to the proper authority, no such staff member shall be required to or held liable for refusal to perform, participate in, or cooperate in abortion or sterilization procedures.

(b) Individuals performing or participating in abortion or sterilization procedures are those physicians, nurses, staff members, or employes of a hospital or other health care facility who are directly involved in such a procedure and are in attendance at the time when and in the room where the procedure takes place and without whose services the procedure itself could not be performed.

(c) Individuals cooperating in abortion or sterilization procedures are those physicians, nurses, staff members, or employes of a hospital or other health care facility, whether or not directly involved in such procedures or in attendance at the time when and in the room where the procedure takes place, whose duties are of a type peculiar to abortion or sterilization procedures and without whose services the procedure itself could not be performed. Examples of ‘‘cooperation’’ include assistance rendered by a nurse, staff member, or employe or a hospital of health care facility to a doctor in performing the abortion procedure; rendering of the services of an anesthetist or anesthesiologist in connection with the abortion procedure; disposal of or assistance in the disposal of aborted fetuses; cleaning the instruments used in the abortion or sterilization procedure. Examples of duties and conduct which would not constitute ‘‘cooperation’’ include: functioning in ancillary services, such as food preparation, to serve the patient, ordinary services of housekeeping and dietary personnel; cleaning of the room used in the abortion procedure following the abortion; record keeping by clerical personnel; installation of or repairs to electrical, plumbing, or heating facilities in surgical areas; performance by a laboratory technician of blood tests upon a patient prior to abortion upon that patient; involvement of a nurse, staff member, or employe in the caring for a patient in any preparatory procedure leading to abortion or in the postabortion period of the patient.

(d) Pursuant to the procedures set forth in this section, any physician, nurse, staff member, or employe of a hospital or other health care facility may submit a written limited objection to performing, participating in, or cooperating in particular types of abortion procedures or abortion procedures performed after a certain number of weeks of gestation, and such person may thereby obtain the protections afforded by section 5.2(a) of the act (43 P. S. § 955.2(a)), to the extent set forth in such limited objection.

This section cited in 16 Pa. Code § 51.44 (relating to reasonable accommodation to rights of employes).

History

• Authority: The provisions of this Chapter 51 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 51 adopted March 11, 1977, 7 Pa.B. 699, unless otherwise noted.

16 Pa. Code § 51.42 Willingness or refusal to perform or participate in abortion or sterilization procedures.

(a) Pursuant to section 5.2(b)(2) of the act (43 P. S. § 955.2(b)(2)), no physician, nurse or staff member of a hospital or other health care facility who expresses a willingness to participate in the performance of abortion or sterilization procedures; who expresses a refusal to participate in the performance of such procedures based upon objection thereto on moral, religious or professional grounds; or who makes a statement or otherwise manifests any attitude with respect to abortion or sterilization shall be subject to any penalties; disciplinary action; denial; or limitation of public funds, licenses, certifications, degrees or other approvals or documents of qualification by reason of such willingness or refusal or statement or manifestation of attitude, except where such willingness, refusal, objection, statement or manifestation of attitude constitutes an overt act which disrupts hospital procedures, operations, or services or which endangers the health or safety of any patient.

(b) Individuals performing or participating in abortion or sterilization procedures are those physicians, nurses, staff members or employes of a hospital or other health care facility who are directly involved in such a procedure and are in attendance at the time when and in the room where the procedure takes place and without whose services the procedure itself could not be performed.

(c) For the purposes of sections 5.2(b)(2) and (3) of the act (43 P. S. § 955.2(b)(2) and (3)), a statement or other manifestation of attitude includes, but is not limited to, any written or oral statement and any course of conduct in which such person has engaged subsequent to January 22, 1973 which clearly and openly reflects or expresses the attitude of such person with respect to abortion or sterilization including, as an expression of attitude, the fact that such person has undergone an abortion or sterilization procedure.

This section cited in 16 Pa. Code § 51.44 (relating to reasonable accommodation to rights of employes).

History

• Authority: The provisions of this Chapter 51 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 51 adopted March 11, 1977, 7 Pa.B. 699, unless otherwise noted.

16 Pa. Code § 51.43 Other protections afforded individuals in employment and education.

(a) Section 5.2(b)(3) of the act (43 P. S. § 955.2(b)(3)) provides certain protections in the areas of employment and education and is applicable to the employment practices of hospitals and health care facilities as well as such practices of any ‘‘public or private agency, institution or person, including a medical, nursing or other school.’’ Under this section, it is unlawful to deny admission to, impose any burdens in terms or conditions of employment upon, or otherwise discriminate against any applicant for admission or any student or employe who expresses a willingness to participate in the performance of abortion or sterilization procedures, who expresses a refusal to participate in the performance of such procedures based upon objection thereto on moral, religious, or professional grounds, or who makes a statement or otherwise manifests any attitude with respect to abortion or sterilization, except where such willingness, refusal, objection, statement or manifestation of attitude constitutes an overt act which disrupts hospital procedures, operations or service or which endangers the health or safety of any patient.

(b) Nothing in this section shall be taken to permit a student or employe either to refuse to participate in an emergency surgical procedure which involves an inevitable abortion or to refuse to complete his participation in any surgical procedure once he has voluntarily undertaken it without knowing it would involve a procedure to which he is opposed on moral, religious or professional grounds.

This section cited in 16 Pa. Code § 51.44 (relating to reasonable accommodations to rights of employes).

History

• Authority: The provisions of this Chapter 51 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 51 adopted March 11, 1977, 7 Pa.B. 699, unless otherwise noted.

16 Pa. Code § 51.44 Reasonable accommodation to rights of employes.

(a) It is the goal of the Commission to encourage all employers and their employes to anticipate any interference in the regular course of business activites which might be caused by the exercise of the rights of an employe under § § 51.41—51.43 (relating to rights and obligations of individuals) and that such advance planning shall enable the parties to develop a satisfactory course of action to be followed in all such instances.

(b) Employers who are covered by section 5.2 of the act (43 P. S. § 955.2), relating to discrimination with respect to abortion and sterilization, have a duty to make reasonable accommodations to the needs of their employes, as specified in this section, where such persons express either a willingness or refusal to perform or participate in abortion or sterilization procedures based upon the lawfully stated grounds of objection thereto which willingness or refusal requires the employe to refrain from performing his normally assigned duties or where an employe manifests an attitude with respect to abortion or sterilization. In all cases where it is reasonably foreseeable that a manifestation of attitude or a willingness or objection with respect to abortion or sterilization will result in an interference with the performance of duties required of an employe in the normal course of his employment, such employer may require advance notice thereof by the employe. This notice is necessary so that the claim and the needs of such person may be evaluated by the employer prior to the anticipated interference and enable the employer to make reasonable accommodations to such manifestation of attitude or willingness or objection, with respect to sterilization.

(c) The reasonable accommodations made by the employer to the needs and desires of such employes are such accommodations which may be made without undue hardship to the conduct of the employer’s business. Such undue hardship, for example, may exist where the employe’s needed work cannot be performed by another employe of substantially similar qualifications in the situation where and at the time when the person refuses to perform or participate in the performance of abortion or sterilization procedures or where the employe refuses to perform his normally assigned duties incident to employment.

(d) Because of the particularly sensitive nature of the problems raised in this area and the needs and personal requirements of each person with respect to performance or participation in abortion or sterilization procedures or the manifestation of attitude with respect thereto, the employer shall have the burden of proving that an undue hardship renders the required accommodations to such needs and requirements of the employe unreasonable.

(e) The Commission will review each case on an individual basis, in an effort to seek an equitable application of the provisions of this chapter to the variety of situations which may arise due to the moral, religious, or professional practices and requirements of the citizens of the Commonwealth.

History

• Authority: The provisions of this Chapter 51 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 51 adopted March 11, 1977, 7 Pa.B. 699, unless otherwise noted.

16 Pa. Code § 51.51 Supplementary interpretation regarding bona fide occupational qualification standards.

(a) A public hospital or public health care facility and all other medical facilities which elect to provide abortion or sterilization services have the duty to employ and assign sufficient numbers of medical and other staff persons and provide the necessary equipment and facilities to offer the services on a medically-safe and professional basis. It is imperative that the institutions obtain the services of responsible physicians and other necessary personnel whose personal views on abortion do not prohibit them from providing or participating in abortions or sterilizations.

(b) When an institution is unable to provide sufficient numbers of physicians, nurses, staff members and other employes to provide abortion or sterilization services due to the objection of staff members, the institution shall request from the Commission a supplementary interpretation regarding bona fide occupational qualification standards for the position in question, to be operative during the period of time when the institution is attempting to employ sufficient numbers of staff people to provide the medical services.

History

• Authority: The provisions of this Chapter 51 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 51 adopted March 11, 1977, 7 Pa.B. 699, unless otherwise noted.

16 Pa. Code § 51.52 Securing supplementary interpretations.

(a) Applications for the issuance of a supplementary interpretation are governed by the provisions of § § 41.71—41.73 (relating to bona fide occupational qualifications). The applications shall be in writing and directed to the Executive Director of the Commission, setting forth the jobs involved by title, duties and numbers of positions. Applications shall include a demonstration of why the applicant believes that an adequate number of present employes are not available to perform the jobs or services for which the interpretation is requested. The applicant may make appropriate references to guidelines, regulations, decisions or court opinions and may include other appropriate supportive materials.

(b) If the Commission grants a supplementary interpretation to a hospital or other health care facility, the institution shall be permitted to make a preemployment inquiry with regard to the willingness of an applicant for employment to perform or otherwise participate in the performance of abortion or sterilization procedures and services related thereto, for the purpose of utilizing the information in its selection procedures.

History

• Authority: The provisions of this Chapter 51 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 51 adopted March 11, 1977, 7 Pa.B. 699, unless otherwise noted.

16 Pa. Code § 51.61 Exemption for certain clinics and health care facilities.

The requirements of section 5.2(b)(3) of the act (43 P. S. § 955.2(b)(3)) do not apply to the employment practices of a health care facility operated exclusively for the performance of abortion or sterilization or directly related procedures or to a separate clinic of a health care facility for the performance of abortion or sterilization or directly related procedures.

History

• Authority: The provisions of this Chapter 51 issued under section 7(d) of the Pennsylvania Human Relations Act (43 P. S. § 957(d)), unless otherwise noted.
• Source: The provisions of this Chapter 51 adopted March 11, 1977, 7 Pa.B. 699, unless otherwise noted.

Part III Municipal Retirement Board

Chapter 81 General Provisions

16 Pa. Code § 81.1 Definitions.

The following words and terms, when used in this part, have the following meanings, unless the context clearly indicates otherwise: Accumulated deductions—The total amount deducted from the salary or compensation of the contributor plus regular interest credited thereon, based on a benefit plan selected and as determined by an actuary, and shall also include payments for arrearages for reinstatement or purchase of service, as otherwise permitted by law. Active member—A municipal employe, municipal firefighter or municipal police officer who is earning credited service in a System pension plan as a result of employment with a municipality that has enrolled in the System. Actuarially equivalent—Annuities or lump sum amounts of equal present value determined by appropriate actuarial factors based on mortality tables and interest rates currently adopted and used by the Board. Beneficiary—A person last designated in writing by a contributor or a retired member, or if one is not so designated, the estate of the member or next of kin under 20 Pa.C.S. § 3101 (relating to payments to family and funeral directors), to the extent applicable. Board—The Pennsylvania Municipal Retirement Board required by the law to administer the System. Contributor—The term includes a member who has a member’s account with the System, regardless of whether the account contains accumulated deductions. Date of termination of service—

(i) For an active member, the last day of employment in a status covered by the eligibility requirements of the pension plan.

(ii) For an inactive member, the date on which formal action is taken by the employer to separate the member from employment. Effective date of disability retirement—The date following the last day for which compensation was paid or the date on which the member filed an effective application for disability benefits, whichever is later. Inactive member—A municipal employe, municipal firefighter or municipal police officer who is enrolled in the System but is no longer earning credited service in a System pension plan as a result of separation from or leave from employment. Law—The Pennsylvania Municipal Retirement Law (53 P. S. § § 881.101—881.502). Optional membership—Shall be available to those categories of employes authorized by law, resolution or ordinance to elect or refrain from electing membership.

(i) If they choose not to join, the declination of membership shall apply for the period of time the employe serves continuously in that optional category.

(ii) If there is a break in service and the employe returns, the member may not be permitted to purchase optional membership time previously declined, but may be a member for future optional service, if the employe so chooses.

(iii) If the employe returns to service when there is mandatory membership, the member shall be required to join the plan, on a prospective basis only. Portability—The condition by which a member leaves the employ of a System administered plan and within 1 year of the date of termination of service enters into the employ of another System administered plan and the member elects to transfer his previously accrued service credits to the new employer, subject to provision of municipalities’ contracts. Prior service—This may not apply to municipal employes or officers who are returning to service in those municipalities which had optional plans in which the member chose not to enroll. The term includes service to the municipality prior to the effective date of the plan unless the municipality elects to limit credit for the service. Regular interest—The rate fixed by the Board, on the basis of earnings on investments and, as applied to members’ contributions, means interest compounded annually to be calculated as follows: The sum of the accumulated deductions at the conclusion of the previous year and the mean balance of the current year’s contributions multiplied by the regular interest amount then in existence for the fractional part of a year for which the contributor was a member. Retired member—A former municipal employe, municipal firefighter or municipal police officer, or the beneficiary or survivor annuitant of a municipal employe, municipal firefighter or municipal police officer who is entitled to a monthly benefit payment from the retired member’s reserve account of the System. System—The Pennsylvania Municipal Retirement System created by the law. Vested member—A member after a stipulated age or with sufficient years of service, or both, based on the plan in which the member is enrolled, who has terminated municipal service and has elected to leave total accumulated deductions in the Fund and to defer receipt of an annuity representing both the member’s and municipal benefits, provided the election is made within 90 days after the effective date of termination of service.

The provisions of this § 81.1 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial pages (260159) to (260161).

History

• Source: The provisions of this § 81.14 reserved June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial page (260164).

16 Pa. Code § 81.2 Applicability of regulations.

This chapter and Chapters 83 and 91 (relating to municipal employes) shall be equally applicable under all articles of the law.

The provisions of this § 81.2 adopted June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168.

History

• Source: The provisions of this § 81.14 reserved June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial page (260164).

16 Pa. Code § 81.3 General powers of the Board.

The Board will act as an independent administrative board with all of the powers specified in section 104 of the law (53 P. S. § 881.104).

The provisions of this § 81.3 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial page (260162).

History

• Source: The provisions of this § 81.14 reserved June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial page (260164).

16 Pa. Code § 81.4 Actuarial investigation, tables and rates.

(a) Board adopted actuarial assumptions and tables shall be a part of and applied consistently to all System administered plans.

(b) In the preparation of actuarial studies intended to be used for the possible enrollment of plans into the System, the same actuarial assumptions and tables shall be used as are applied to existing, enrolled plans.

The provisions of this § 81.4 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial page (260162).

History

• Source: The provisions of this § 81.14 reserved June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial page (260164).

16 Pa. Code § 81.7 Retirement funds and accounts.

(a) The Board will consolidate for investment purposes the assets of the various plans. The Board will account separately for each plan’s assets in a municipal account and each individual active member, inactive member and vested member’s assets in a member’s account. The Board maintains pooled accounts for retired members (the Retired Members’ Reserve Account) and for the funding of disability benefits (the disability reserve).

(b) When a municipality withdraws the administration of its plan from the System, the municipality shall only be entitled to the assets credited to the plan’s municipal account and the plan’s members’ accounts in accordance with the provisions of the law. Assets that are actuarially determined by the Board’s actuary to be matched to a withdrawing plan’s retired members as of the effective date of withdrawal will also be returned to the plan in accordance with the law provided there are sufficient funds in the retired member’s reserve account to meet the actuarially determined liability of all retired members of the System, as of the date of withdrawal; otherwise payment shall be on a prorated basis.

The provisions of this § 81.7 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial page (260163).

History

• Source: The provisions of this § 81.14 reserved June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial page (260164).

16 Pa. Code § 81.9 Management and investment of Fund; interest credits.

(a) The Board will have the exclusive responsibility to manage the Fund with full power to invest the moneys therein, subject to the terms, conditions, limitations and restrictions imposed by law upon fiduciaries. The assets of the Fund shall be held in trust. No part of the assets of the Fund will be used for or diverted to purposes other than for the exclusive benefit of the members, their spouses or the member’s beneficiaries prior to the satisfaction of all liabilities of the Fund with respect to them, provided that the Fund shall be used to pay reasonable administrative expenses of the System.

(b) The Board may take action necessary and appropriate to facilitate the purchase, sale and custody of Fund assets.

The provisions of this § 81.9 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial page (260163).

History

• Source: The provisions of this § 81.14 reserved June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial page (260164).

16 Pa. Code § 81.10 Withdrawal provisions.

(a) A plan withdrawal by a municipality shall comply with section 412 of the law (53 P. S. § 881.412).

(b) A plan withdrawing from the System that has retired members shall provide to the Board as a part of the withdrawal application an acknowledgment of the plan sponsor to assume responsibility for the providing of all future benefit payments for the existing retired members and beneficiaries effective with the withdrawal.

(c) Prior to the Board’s approval of a withdrawal under section 412 of the law, the Board may require:

(1) The withdrawing municipality to enter into a written agreement with the Board which would terminate its contractual relationship with the Board and fix the respective rights of the parties.

(2) The withdrawing municipality to obtain individual waivers or releases from affected members, who will no longer be eligible for benefits from the System for service rendered to the withdrawing municipality.

(d) The term “municipal employe” for the purpose of plan withdrawal shall include active member, inactive member, vested member and retired member.

The provisions of this § 81.10 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial page (260163).

History

• Source: The provisions of this § 81.14 reserved June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial page (260164).

16 Pa. Code § 81.11 Contract provisions.

(a) Plans enrolling or improving plan benefits under Article IV of the law (53 P.S. § § 81.401—81.413) may not provide benefits in excess of or provide for member contribution rates less than those available to a municipality or a municipality’s class of employes under existing law, including laws applicable to the establishment of pension plans.

(b) Plan improvements shall be determined on a total plan basis and not on a benefit-by-benefit comparison nor on an individual-by-individual comparison. An individual’s accrued benefit may not be diminished by the implementation of an improved benefit plan contract.

The provisions of this § 81.11 adopted June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168.

History

• Source: The provisions of this § 81.14 reserved June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial page (260164).

Chapter 83 Municipal Employes

16 Pa. Code § 83.3 Compulsory and optional membership.

(a) Each municipality shall determine, subject to review and approval by the Board, the eligibility of its employes for membership in the System.

(b) If membership in a plan is optional, the municipality shall advise affected employes of the option and, within 1 year after the optional membership is available to the employe, the employe shall exercise the option or indicate in writing that membership in the plan is not elected. The action is irrevocable during the period of the continuous service of the employe.

(c) Each municipality shall supply the Board with its rules regarding a probationary period for plan membership and the period shall be uniform for all employes. An employe in the probationary status, if subsequently enrolled as a member may not be eligible for service credit for the time served in the probationary period.

The provisions of this § 83.3 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial pages (260165) to (260166).

History

• Source: The provisions of this § 83.14 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial pages (260172) to (260173).

16 Pa. Code § 83.6 Contributions by members.

Contributions required to be made by a member may not be paid by the municipality under any circumstances other than the provisions of section 414(h)(2) of the Internal Revenue Code (26 U.S.C.A. § 414(h)(2)). If an employe is simultaneously employed by more than one municipality or in positions that make the individual eligible for membership in more than one plan, the member shall receive credit for concurrent service for each plan and the member’s compensation for each plan shall be considered separately for benefit purposes.

The provisions of this § 83.6 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial pages (260168) to (260169).

History

• Source: The provisions of this § 83.14 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial pages (260172) to (260173).

16 Pa. Code § 83.7 Purchase requirements for previous service.

A former contributor who has withdrawn total accumulated deductions may, upon a subsequent return to service, restore to the Fund those accumulated deductions representing that member’s previous service and continue accruing service credits for service rendered subsequent to the return to service, provided the member pays the amount due thereon plus regular interest up to the date of purchase in a lump sum within 30 days after billing, or through salary deductions amortized with regular interest through a repayment period of not more than 5 years, provided that regular interest is charged through the repayment period chosen by the member and approved by the Board.

The provisions of this § 83.7 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial pages (260169) to (260170).

History

• Source: The provisions of this § 83.14 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial pages (260172) to (260173).

16 Pa. Code § 83.11 Options on superannuation or early retirement.

(a) Once a member has filed an application for a benefit, and the member has received and cashed the first benefit payment check, the selected retirement benefit option of the member shall be irrevocable unless the retired member returns to active service to the plan from which the member retired. Only the member may change a benefit option.

(b) A plan enrolled in the system may not allow for the present value of a living member’s benefit to be paid in one lump sum. The municipal portion of the annuity payment shall be paid in a monthly annuity payment option.

The provisions of this § 83.11 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial page (260171).

History

• Source: The provisions of this § 83.14 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial pages (260172) to (260173).

16 Pa. Code § 83.12 Disability retirement.

(a) Disability applications shall be accompanied by medical documentation on forms supplied by the Board to enable the Board’s medical examiners to review and determine whether the applicant is medically disabled and prohibited from engaging in a gainful occupation.

(b) The Board may require the earnings reports as it deems necessary to insure that a disability annuitant is unable to engage in a gainful occupation.

The provisions of this § 83.12 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial pages (260171) to (260172).

History

• Source: The provisions of this § 83.14 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial pages (260172) to (260173).

16 Pa. Code § 83.15 Procedures for amending contracts.

Upon application, a municipality may upgrade its benefits under Article II of the law (53 P. S. § § 881.201—881.215) by entering into a contract with the Board under the benefit provisions available under Article IV of the law (53 P. S. § § 881.401—881.413). The Board will not, and the municipality may not, enter into a contract which decreases benefits or which provides benefits in excess of that available under the law or another existing law pertaining to that class of municipality. A plan to upgrade benefits shall, prior to its approval, be determined by the actuary to be actuarially sound. Additional costs or benefit increases shall be the responsibility of the municipality and its member employes based upon the benefit plan selected and approved by the Board.

History

• Source: The provisions of this § 83.14 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial pages (260172) to (260173).

Chapter 91 Special Rules of Administrative Practice and Procedure

16 Pa. Code § 91.1 Applicability of general rules.

Under 1 Pa. Code § 31.1 (relating to scope of part), 1 Pa. Code Part II (relating to general rules of administrative practice and procedure), applies to the activities of and proceedings before the Board.

The provisions of this § 91.1 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial page (260183).

History

• Authority: The provisions of this Chapter 91 issued under the Pennsylvania Municipal Retirement Law (53 P. S. § § 881.101—881.501); and section 35 of the Administrative Agency Law (71 P. S. § 1710.35) (Repealed), unless otherwise noted.
• Source: The provisions of this § 91.1 amended June 23, 2000, effective June 24, 2000, 30 Pa.B. 3168. Immediately preceding text appears at serial page (260183).

Part IV Public Employee Retirement Commission

Chapter 201 General Provisions

16 Pa. Code § 201.1 Purpose.

This part implements the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803).

History

• Authority: The provisions of this § 201.2 amended under section 609 of the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § 895.609).
• Source: The provisions of this § 201.2 adopted December 18, 1987, effective December 19, 1987, 17 Pa.B. 5234; amended August 26, 1988, effective August 27, 1988, 18 Pa.B. 3805. Immediately preceding text appears at serial pages (123157) to (123159).

16 Pa. Code § 201.2 Definitions.

The following words and terms, when used in this part, have the following meanings, unless the context clearly indicates otherwise: Act—The Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803). Amortization contribution requirement—A dollar value that represents the aggregate annual payment or credit toward the unfunded accrued liability and is determined under section 302(b)(3) of the act (53 P. S. § 895.302(b)(3)). Ancillary benefit—An aspect of the benefit plan other than either the retirement benefit or the provisions of the benefit plan directly related to or directly affecting the retirement benefit. Commission—The Public Employee Retirement Study Commission of the Commonwealth. Distress determination—The calculation of the relative degree of financial distress existing for a municipal pension system in a given year under the procedure specified in Chapter 5 of the act (53 P. S. § § 895.501—895.504). Election form—An individual form—PC-204D, Act 205 Recovery Program Election Form—provided by the Commission for completion by municipalities electing to participate in the recovery program for financially distressed municipal pension systems established in Chapter 6 of the act (53 P. S. § § 895.601—895.609). Employer normal cost—The normal cost of a pension plan calculated under section 302 of the act (53 P. S. § 895.302) less the amount of member contributions anticipated receivable for the following year. Firefighter—A municipal employe who holds a position or an office in the fire department of a municipality and has retirement coverage provided by the firefighters’ pension plan. Funding adjustment—A dollar value that, in the case of a defined benefit plan self-insured in whole or in part, is equal to one-tenth of the amount by which the actuarial value of assets exceeds the actuarial accrued liability. In the case of a defined benefit plan insured in whole by an insurance carrier, the funding adjustment is equal to the amount of cash assets available for the payment of future insurance premiums. Letter of intent—A letter filed with the Commission by a municipality disclosing the municipality’s intention to participate in the recovery program and requesting a distress determination to establish the level of the recovery program applicable to the municipality. Municipality—A city, borough, incorporated town, township, home rule municipality, association of municipalities cooperating under the act of July 12, 1972 (P. L. 762, No. 180), referred to as the Intergovernmental Cooperation Law, or authority established by the actions of a county, city, borough, town or township or jointly by these political subdivisions. Nonuniformed employe—A municipal employe other than a police officer or firefighter. Pension plan or system—The various aspects of the relationship between a municipality and its employes with respect to the retirement coverage provided by a municipality to the employes. The term does not include a plan, program or arrangement that is funded solely by municipal employe earnings or compensation reported as municipal employe earnings or compensation to the Internal Revenue Service on the Form W-2 Wage and Tax Statement or established under sections 8.1—8.3 of the act of March 30, 1811 (P. L. 145, 5 Sm.L. 228) (72 P. S. § § 4521.1—4521.3) or section 408 of the Internal Revenue Code (26 U.S.C.A. § 408). Police officer—A municipal employe who holds a position or an office in the police department of a municipality and has retirement coverage provided by the police pension plan. Recovery program—The remedial program for financially distressed municipal pension systems established in Chapter 6 of the act (53 P. S. § § 895.601—895.609). Regional or joint pension plan—A pension plan established and maintained by two or more municipalities cooperating under the act of July 12, 1972 (P. L. 762, No. 180), referred to as the Intergovernmental Cooperation Law. Reporting form—The individual form supplied by the Commission and distributed to municipalities for use in the preparation and submission of actuarial valuation reports under Chapter 2 of the act (53 P. S. § § 895.201—895.208).

The provisions of this § 201.2 amended under section 609 of the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § 895.609).

The provisions of this § 201.2 adopted December 18, 1987, effective December 19, 1987, 17 Pa.B. 5234; amended August 26, 1988, effective August 27, 1988, 18 Pa.B. 3805. Immediately preceding text appears at serial pages (123157) to (123159).

History

• Authority: The provisions of this § 201.2 amended under section 609 of the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § 895.609).
• Source: The provisions of this § 201.2 adopted December 18, 1987, effective December 19, 1987, 17 Pa.B. 5234; amended August 26, 1988, effective August 27, 1988, 18 Pa.B. 3805. Immediately preceding text appears at serial pages (123157) to (123159).

Chapter 203 Actuarial and Financial Reports on Municipal Employe Pension Systems

16 Pa. Code § 203.1 Municipalities required to file actuarial valuation reports with the Commission.

(a) Distribution of reporting forms.

(1) A municipality shall complete and file with the Commission Form PC-200, Act 205 Questionnaire and Reporting Form Request. The chief administrative officer of the municipality shall certify on Form PC-200 the pension coverage provided by the municipality for each potential category of municipal employe: police, paid firefighter and nonuniformed employe. If, for a category of employe, the chief administrative officer of the municipality certifies that no pension coverage is provided, no further reporting applicable to that category of employe is required.

(2) On the basis of the information obtained from Form PC-200, the Commission will send the applicable reporting forms to the municipality for use in preparing an actuarial valuation report on the employe pension plans established and maintained by the municipality.

(3) The reporting forms shall include the following:

(i) Form PC-201A—Actuarial Valuation Report: Police Pension Plan Without Defined Benefits.

(ii) Form PC-202A—Actuarial Valuation Report: Fire Pension Plan Without Defined Benefits.

(iii) Form PC-203A—Actuarial Valuation Report: Nonuniformed Pension Plan Without Defined Benefits.

(iv) Form PC-201B—Actuarial Valuation Report: Police Pension Plan With Fully Insured Defined Benefits.

(v) Form PC-202B—Actuarial Valuation Report: Fire Pension Plan With Fully Insured Defined Benefits.

(vi) Form PC-203B—Actuarial Valuation Report: Nonuniformed Pension Plan With Fully Insured Defined Benefits.

(vii) Form PC-201C—Actuarial Valuation Report: Police Pension Plan With Defined Benefits.

(viii) Form PC-202C—Actuarial Valuation Report: Fire Pension Plan With Defined Benefits.

(ix) Form PC-203C—Actuarial Valuation Report: Nonuniformed Pension Plan With Defined Benefits.

(b) Requirement to file actuarial valuation reports and experience investigations.

(1) A municipality shall file a complete actuarial valuation report with the Commission for a pension plan established and maintained by the municipality for its police officers, firefighters and nonuniformed employes.

(i) A complete actuarial valuation report consists of an original reporting form supplied by the Commission that is the applicable type of reporting form for the subject pension plan and that has been completed in accordance with the instructions of the Commission.

(ii) An actuarial valuation report required under section 201(a) of the act (53 P. S. § 895.201(a)) shall be filed in compliance with the filing date specified in section 201(b).

(2) A municipality shall file a quadrennial experience investigation with the Commission for an employe pension plan established or maintained by the municipality that has an active, vested inactive and benefit recipient membership equal to or greater than 1,000 as determined at the beginning of the plan year occurring in 1985 and every fourth year thereafter.

(i) The experience investigation shall be prepared in compliance with the requirements of section 203 of the act (53 P. S. § 895.203).

(ii) The experience investigation shall accompany the actuarial valuation report for the pension plan and shall be filed in compliance with the filing date specified in section 201(c) of the act.

(c) Receipt of actuarial valuation reports.

(1) The Commission will receive an actuarial valuation report or experience investigation mailed to the following address: Commonwealth of Pennsylvania, Public Employee Retirement Study Commission, Post Office Box 1429, Harrisburg, Pennsylvania 17105-1429.

(2) The Commission will accept as timely filed a complete actuarial valuation report or experience investigation which bears a United States Postal Service postmark dated on or before the applicable filing date specified in section 201 of the act.

(d) Notification of noncompliance. If an actuarial valuation report or an experience investigation is received by the Commission and is not in compliance with the requirements of the act or if a reporting form is received by the Commission and is not in compliance with the instructions of the Commission, the Commission will notify the municipality of the noncompliance within a reasonable time after the date of the Commission’s receipt of the actuarial valuation report, experience investigation or reporting form.

(e) Procedure for obtaining delinquent actuarial valuation reports and experience investigations.

(1) Delinquent actuarial valuation reports and experience investigations.

(i) An actuarial valuation report is delinquent if a complete actuarial valuation report is not filed by the filing deadline specified in section 201(b) of the act.

(ii) An experience investigation is delinquent if a complete experience investigation complying with the applicable requirements of Chapter 2 of the act (53 P. S. § § 895.201—895.208) does not accompany the complete actuarial valuation report that is filed by the filing deadline specified in section 201(c) of the act.

(2) Consequences of delinquency.

(i) If an actuarial valuation report or experience investigation is delinquent, financing that is provided to the applicable municipality by the Commonwealth under the General Municipal Pension System State Aid Program or another program providing financing that is dedicated for pension purposes shall be withheld until a complete actuarial valuation report or experience investigation is filed.

(ii) The Commission will notify the Department of the Auditor General of municipalities with one or more delinquent actuarial valuation reports or experience investigations as soon as practicable following the filing deadlines specified in section 201 of the act. The Commission will also notify the Department of the Auditor General on a monthly basis concerning a municipality with previously determined delinquent actuarial valuation reports or experience investigations that have complied with the actuarial valuation or experience investigations reporting requirements of the act.

(iii) Upon being notified of a municipality with delinquent actuarial valuation reports or experience investigations, the Department of the Auditor General shall withhold financing that is provided to the municipality by the Commonwealth and dedicated for pension plan purposes until notified by the Commission of compliance by the applicable municipality with the actuarial valuation or experience investigation reporting requirements of the act.

(iv) If an actuarial valuation report or experience investigation is delinquent and, subsequent to notification of the applicable municipality by the Commission, remains delinquent for a period in excess of 30 days, the Commission will issue an order compelling submission by the municipality of the delinquent actuarial valuation report or experience investigation.

(v) If the municipality fails, omits, neglects or refuses to comply with the order of the Commission compelling submission of the delinquent actuarial valuation report or experience investigation within 30 days of the date of the Commission order, the Commission will notify the municipality of its intent to have the actuarial valuation report or experience investigation prepared on behalf of the municipality, with payment by the municipality of the actual cost of the preparation of the actuarial valuation report or experience investigation.

(vi) Upon receipt of this notice of intent, the municipality shall indicate on a form provided by the Commission what steps have been taken or are being taken by the municipality to secure compliance with the actuarial valuation or experience investigation reporting requirements of the act and the anticipated date for that compliance. If the municipality fails to provide this indication within 15 days of the date of the notice of intent of the Commission, or if the indication discloses no substantial progress towards compliance with the actuarial valuation or experience investigation reporting requirements of the act, or if the anticipated date of compliance with the actuarial valuation or experience investigation reporting requirement of the act specified in the indication discloses a substantial delay in compliance, the Commission may initiate action for the preparation of the applicable actuarial valuation report or experience investigation.

(vii) The municipality, upon notification by the Commission, shall provide the financial, demographic and benefit plan information necessary for the Commission to secure preparation of the applicable actuarial valuation report or experience investigation.

(viii) If the municipality fails, omits, neglects or refuses to comply with the order of the Commission compelling submission of the delinquent actuarial valuation report or experience investigation, the Commission may institute legal proceedings for injunction, mandamus or other appropriate remedy at law or in equity to enforce compliance with the order of the Commission.

The provisions of this § 203.1 adopted December 18, 1987, effective December 19, 1987, 17 Pa.B. 5234; amended July 24, 1992, effective July 25, 1992, 22 Pa.B. 3839. Immediately preceding text appears at serial pages (123161) to (123164).

History

• Authority: The provisions of this Chapter 203 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this § 203.1 adopted December 18, 1987, effective December 19, 1987, 17 Pa.B. 5234; amended July 24, 1992, effective July 25, 1992, 22 Pa.B. 3839. Immediately preceding text appears at serial pages (123161) to (123164).

16 Pa. Code § 203.2 Procedures for the preparation of actuarial valuation report.

(a) Actuarial value of pension plan assets. The actuarial value of pension plan assets are the value of cash, investment securities and other property belonging to the municipal pension plan according to a method for valuing assets adopted by the governing body of the municipal pension plan upon the recommendation of the actuary. The method for valuing assets shall be adequately disclosed in the accompanying documentation or exhibits and may not produce a result that in total is greater than 120% or less than 80% of the fair market value of the assets of the municipal pension plan.

(b) Actuarial payroll. If the amount of the payroll used in the preparation of the actuarial valuation report differs from the amount of the gross payroll of the active members of the pension plan, the actuary shall disclose the basis for the difference in the payroll amounts.

(c) Aggregated amortization target date. In an actuarial valuation report prepared after 1985, amortization target dates for each increment or decrement of the unfunded actuarial accrued liability occurring since the last actuarial valuation report filed under section 201 of the act (53 P. S. § 895.201) shall be established under section 202(b)(4) (53 P. S. § 895.202(b)(4)) of the act. An actuarial valuation report prepared after 1985 shall also establish an aggregated amortization target date for increments or decrements of unfunded actuarial accrued liability occurring since the actuarial valuation report prepared for the 1985 plan year. The aggregated amortization target date shall be based on the net amortization contribution of the individual amortization schedules being aggregated and shall maintain the actuarial present value equivalency of the individual amortization schedules being aggregated.

(d) Cancellation of amortization schedules in certain instances. If, in the preparation of an actuarial valuation report, the assets of the pension plan are determined to be in excess of the actuarial accrued liability, amortization schedules established under section 202(b)(4) of the act shall be cancelled and the funding adjustment to the minimum municipal obligation to the pension plan specified in section 302(c)(3) of the act (53 P. S. § 895.302(c)(3)) shall be applied.

(e) Treatment of funding deviations. If funding provided to a municipal pension plan exceeds or is less than the full financial requirements of the pension plan determined under section 302(b) of the act, the amount of the funding deviation shall be treated as an actuarial gain or loss and amortized under section 202(b)(4) of the act.

History

• Authority: The provisions of this Chapter 203 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this § 203.1 adopted December 18, 1987, effective December 19, 1987, 17 Pa.B. 5234; amended July 24, 1992, effective July 25, 1992, 22 Pa.B. 3839. Immediately preceding text appears at serial pages (123161) to (123164).

16 Pa. Code § 203.3 Range of economic actuarial assumptions.

(a) Selection of actuarial assumptions. The actuarial valuation report shall be prepared using actuarial assumptions selected jointly by the actuary of the municipal pension plan and the governing body of the municipal pension plan. The actuarial assumptions shall represent the best available joint estimate of the actuary and the governing body of future occurrences in the case of each actuarial assumption. The economic actuarial assumptions shall additionally be either within the range for economic actuarial assumptions specified in subsection (b) or accompanied in the actuarial valuation report with the documentation specified in subsection (c) that explains and justifies the choice of one or more assumptions outside of the range.

(b) Range of economic actuarial assumptions. No explanatory or justificatory documentation as specified in subsection (c) is required to accompany the actuarial valuation report if the following conditions are met:

(1) Economic actuarial assumptions reflect annual percentage increase amounts.

(2) The actuarial assumption as to interest or investment earnings is not less than 5% or more than 9%.

(3) The actuarial assumption as to salary projection or individual pension plan member salary increase for municipal pension plans with a salary related benefit plan is not greater than the actuarial assumption as to interest or investment earnings and is not less than the amount of the actuarial assumption as to interest or investment earnings reduced by 3%. If the actuarial assumption as to salary projection or individual pension plan member salary increase applicable to the municipal pension plan is in the form of probability rates that differ for various ages, the rate to be used for this comparison shall be calculated by the actuary preparing the report, with appropriate accompanying documentation, and shall be the average rate under the probability table for the ages 30 through 50.

(4) The actuarial assumption as to total covered payroll increase, for a municipal pension plan of a municipality that has been determined to be financially distressed and to which a remedy of delayed implementation of the funding standard under section 607(g) or (h) of the act (53 P. S. § 895.607(g) or (h)) is applicable, is not greater than 4% nor less than .0%.

(5) The actuarial assumption as to inflation, for a municipal pension plan that provides for automatic cost-of-living postretirement adjustments based on increases in the Federal consumer price index or other recognized measure of inflation, is not greater than the amount of the actuarial assumption as to interest or investment earnings reduced by 2% and is not less than the amount of the actuarial assumption as to interest or investment earnings reduced by 5%.

(c) Documentation required for certain actuarial assumptions.

(1) If the economic actuarial assumptions used to prepare the actuarial valuation report are outside the range of economic actuarial assumptions specified in subsection (b), or if the economic actuarial assumptions utilize annuity rates or differ between preretirement experience and postretirement experience, the actuary preparing the actuarial valuation report shall submit documentation that explains the choice of economic actuarial assumptions made by the actuary and the governing body of the municipal pension plan and justifies their use in preparing the actuarial valuation report.

(2) The documentation, at a minimum, shall cite aspects of the benefit plan of the municipal pension plan in question that affect the choice of the particular economic actuarial assumptions in question and the particular circumstances and specific experience of the municipal pension plan and its investment performance and of the municipality and its salary structure that caused the actuary and the governing body of the municipal pension plan to conclude that a set of actuarial assumptions within the range specified in subsection (b) is inappropriate and to conclude that the particular economic actuarial assumptions chosen are appropriate.

This section cited in 16 Pa. Code § 205.8 (relating to Supplemental State Assistance).

History

• Authority: The provisions of this Chapter 203 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this § 203.1 adopted December 18, 1987, effective December 19, 1987, 17 Pa.B. 5234; amended July 24, 1992, effective July 25, 1992, 22 Pa.B. 3839. Immediately preceding text appears at serial pages (123161) to (123164).

16 Pa. Code § 203.4 Procedure for authorization of alternative actuarial cost method for actuarial valuation reports.

(a) Application for authorization. A separate application to the Commission for authorization to utilize an alternative actuarial cost method for the actuarial valuation report shall be made by a municipality that desires the authorization. A separate application shall be made for each municipal pension plan for which the authorization is sought. The application shall be filed by the chief administrative officer of the municipality following adoption by the governing body of the municipality of a resolution requesting the authorization. No application filed on behalf of more than one municipality or more than one municipal pension plan or filed by a person other than the chief administrative officer of the affected municipality will be a valid application.

(b) Deadline date for filing application for authorization. The application for authorization to utilize an alternative actuarial cost method for the actuarial valuation report shall be filed by the last business day occurring 6 months prior to the date on which the actuarial valuation report is due to be filed with the Commonwealth.

(c) Contents of the application for authorization. The application for authorization to utilize an alternative actuarial cost method for the actuarial valuation report shall be prepared by the actuary of the municipal pension plan for which the authorization is sought. The application for authorization shall request a particular alternative actuarial cost method and shall indicate, in general, the impracticality, difficulty and undesirability that would result from utilizing the actuarial cost method prescribed in section 202(b) of the act (53 P. S. § 895.202(b)) and the greater practicality, facility and desirability of utilizing the requested alternative actuarial cost method. The application for authorization shall include the following:

(1) Reasons why use of the prescribed actuarial cost method is not in the best interests of the participants and beneficiaries of the municipal pension plan and why use of the requested alternative actuarial cost method is in the best interests of the participants and beneficiaries of the municipal pension plan.

(2) An algebraic demonstration of the conditions under which the alternative actuarial cost method recognizes accruing pension plan liabilities on a level basis over time as a percentage of covered payroll and produces stability in the annual actuarial cost of the pension plan from year to year. Alternatively, if the Commission recognizes the actuarial cost method as a budgeting tool for municipal government for this particular expenditure item, an algebraic demonstration that the requested alternative actuarial cost method will produce a cost incidence pattern over time that corresponds to the adquately documented likely future revenue availability pattern of the municipality. Algebraic demonstrations shall be based on the actuarial assumptions used for the most recent prior actuarial valuation unless clearly unreasonable and on the demographics of the current active and benefit recipient pension plan population.

(d) Additional documentation to accompany application. An application for authorization to utilize an alternative actuarial cost method for the actuarial valuation report shall also include additional documentation that may be used by the Commission in evaluating the application. The additional documentation shall be supplied by the actuary of the municipal pension plan. The additional documentation shall be as follows:

(1) An indication of the number of instances in the prior practice of the actuary during which the actuary had occasion to use the requested alternative actuarial cost method.

(2) If the requested alternative actuarial cost method has been used previously by the actuary, an indication of the key relevant factors or attributes of the pension plan involved in a prior occurrence and a comparison of those factors or attributes with the pertinent factors or attributes of the municipal pension plan covered by the application.

(3) A copy of a published professional article, study or similar work known to the actuary that analyzes the requested alternative actuarial cost method and compares it to the actuarial cost method prescribed in section 202(b) of the act.

(e) Acceptable alternative actuarial cost methods. An acceptable alternative actuarial cost method shall be an actuarial cost method that meets the following criteria:

(1) Is considered to be a generally accepted actuarial method by the American Academy of Actuaries.

(2) Is permitted under regulations issued by the Internal Revenue Service for the determination of minimum funding requirements under section 412 of the Internal Revenue Code (26 U.S.C.A. § 412).

(3) Results in the accumulation of plan assets equal to or in excess of the present value of accrued pension plan benefits, which shall be demonstrated by the actuary of the applicable municipal pension plan.

(f) Criteria for authorization. The authorization of an alternative actuarial cost method for the actuarial valuation report shall be granted only if the following occurs:

(1) A valid application for authorization of an alternative actuarial cost method has been filed by the municipality.

(2) The application is filed in a timely fashion.

(3) The application specifies an alternative actuarial cost method that meets the requirements of subsection (e)(1) and (2), and for which the required demonstration specified in subsection (e)(3) has been prepared.

(4) The application, with clear specific identification of each item, includes the various application contents items in subsection (c) and relevant items of additional documentation in subsection (d).

(5) The application, on its face, presents the required indication of the reasons or the demonstration of results for each contents item set forth in the applicable paragraph of subsection (c).

(6) The application presents the following:

(i) Reasons with respect to the contents item in subsection (c)(1) that, in the opinion of a majority of the Commission members considering the question, are compelling.

(ii) A demonstration with respect to the contents item in subsection (c)(2) that, in the opinion of a majority of the Commission members considering the question, is clear, reasonably probable and compelling.

History

• Authority: The provisions of this Chapter 203 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this § 203.1 adopted December 18, 1987, effective December 19, 1987, 17 Pa.B. 5234; amended July 24, 1992, effective July 25, 1992, 22 Pa.B. 3839. Immediately preceding text appears at serial pages (123161) to (123164).

16 Pa. Code § 203.5 Procedure for authorization of the use of an approximation technique for the valuation of ancillary benefits.

(a) Authorization to utilize an approximation technique for the valuation of ancillary benefits. An actuarial valuation report that uses an aproximation technique for the valuation of ancillary benefits shall include a statement, signed by the actuary, justifying the use of the approximation technique. The statement shall indicate the following:

(1) In general, the impracticality, difficulty and undesirability to the municipality and to the participants and benefit recipients of the municipal pension plan of utilizing the actuarial cost method used to value the retirement benefit to also value ancillary benefits. The statement shall show the greater practicality, facility and desirability to the municipality and to the participants and benefits recipients of the municipal pension plan of utilizing the approximation technique for the valuation of ancillary benefits.

(2) Whether an approximation technique has been utilized for the valuation of ancillary benefits in prior actuarial valuations prepared for the municipal pension plan. If so, the approximation technique which was used. If no prior approximation technique has been used, the specific reasons why an approximation technique is currently being sought, although not utilized previously.

(3) In the best judgment of the actuary, the extent and magnitude of the risk of distortion in the actuarial valuation report data as a result of the use of the approximation technique rather than the actuarial cost method that is used to value the retirement benefit. The statement shall show special steps that the actuary intends to take to monitor a distortion in the actuarial valuation report data, if any, that results from the use of the approximation technique.

(b) Acceptable approximation techniques. The acceptable approximation technique for the valuation of ancillary benefits shall be a loading factor. The loading factor shall be percentage factors used to adjust the actuarial present value of future retirement benefits for active members of the municipal pension plan to reflect an expected increase in the accrued liability and normal cost attributable to ancillary benefits. The percentage loading factors utilized shall be set utilizing the best judgment of the actuary preparing the actuarial valuation report and may not result in an increase in the total normal cost attributable to ancillary benefits of more than 15% or an increase in the total normal cost attributable to an ancillary benefit of more than 10%.

(c) Additional documentation required to accompany actuarial valuation report. If an approximation technique for the valuation of ancillary benefits is used, the actuary preparing the actuarial valuation report shall also include the following:

(1) Additional documentation specifying the ancillary benefits for which the approximation technique is used.

(2) The percentage increase in normal cost resulting from the approximation techniques in total for ancillary benefits.

(3) The percentage increase in normal cost resulting from the approximation technique for an ancillary benefit.

History

• Authority: The provisions of this Chapter 203 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this § 203.1 adopted December 18, 1987, effective December 19, 1987, 17 Pa.B. 5234; amended July 24, 1992, effective July 25, 1992, 22 Pa.B. 3839. Immediately preceding text appears at serial pages (123161) to (123164).

Chapter 204 Actuarial Funding Standard

16 Pa. Code § 204.1 Determination of minimum municipal obligation.

(a) Latest actuarial valuation report. Under section 302 of the act (53 P. S. § 895.302), the minimum municipal obligation is based on the latest actuarial valuation report prepared under the requirements of Chapter 2 of the act (53 P. S. § § 895.201—895.208). When an actuarial valuation report has been prepared but not transmitted to the municipality, the municipality may utilize data extracted from that actuarial valuation report. The extracted data shall be compiled in a written document and certified by the actuary engaged to prepare the actuarial valuation report. If the data contained in the actuarial valuation report subsequently filed with the Commission differ from the extracted data previously certified and used to determine the minimum municipal obligation, the data resulting in the higher minimum municipal obligation will be applied in determining compliance with the actuarial funding standard.

(b) Estimation of member contributions for defined benefit pension plans. When the minimum municipal obligation is calculated under section 302(c) of the act, the estimated member contributions used in the calculation of the minimum municipal obligation shall be the member contribution rate applied to the payroll used in calculating the normal cost requirements of the pension plan.

(c) Payroll definitions.

(1) Defined benefit pension plans. The payroll used in determining the minimum municipal obligation of a pension plan under section 302(c) of the act shall be based on the payroll to be reported on the Internal Revenue Service Form W-2 and shall be calculated as the total payroll for active members of the plan as of the date of the determination, plus the payroll for the same active members of the plan projected to the year’s end using the payroll rates in effect as of the date of the determination. Adjustments to the payroll calculated under the method prescribed in this section may only be made if the adjustments result in a payroll amount that is greater than the payroll amount calculated under this paragraph.

(2) Defined contribution pension plans. The payroll used in determining the minimum municipal obligation of a pension plan under section 303(c) of the act (53 P. S. § 895.303(c)) shall be based on the payroll to be reported on the Internal Revenue Service Form W-2 and shall be the estimated payroll for the active membership of the pension plan, including projected increases in active membership, for the following plan year.

(d) Implementation of revised calculation of minimum municipal obligation. The revised calculation of the minimum municipal obligation, as prescribed under sections 302 and 303 shall be implemented for the minimum municipal obligations developed for the plan years commencing after December 31, 1991.

(e) Failure to adopt a minimum municipal obligation. If a municipality fails to adopt a minimum municipal obligation, the minimum municipal obligation shall be calculated using the actual payroll and member contributions for the applicable year and actuarial data extracted from the certified actuarial valuation prepared immediately before the year for which the minimum municipal obligation is to be calculated. The minimum municipal obligation calculated under this subsection shall be used to determine compliance with the actuarial funding standard.

History

• Authority: The provisions of this Chapter 204 issued under section 609 of the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § 895.609), unless otherwise noted.
• Source: The provisions of this Chapter 204 adopted July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839, unless otherwise noted.

Chapter 205 Recovery Program for Municipal Pension Systems

16 Pa. Code § 205.1 Procedure for applying for distress determination and participation in recovery program.

(a) A municipality choosing to apply for a determination of financial distress shall do so by filing a letter request for determination of financial distress.

(1) A municipality choosing to apply for a determination of financial distress shall file a letter request for determination of financial distress with the Commission by the last business day in June preceding the calendar year in which initial implementation of the recovery program provisions is anticipated. If the letter request for determination of financial distress is not submitted in a timely fashion, a distress determination will not be made and the municipality will be ineligible to participate in the recovery program until a distress determination is made for the municipality in the following calendar year.

(2) A municipality that has previously received a distress determination under this section and has elected to participate in the recovery program is not required to apply for subsequent distress determinations. The municipality’s initial application for a distress determination shall be considered as continuing until the municipality notifies the Commission to the contrary.

(b) The Commission annually will make a distress determination for a municipality that applies for a distress determination under this section based on actuarial indicators and municipal financial indicators as provided in Chapter 5 of the act (53 P. S. § § 895.501—895.504).

(1) The Commission will calculate the actuarial indicators under Chapter 5 of the act using the applicable municipal pension plan data submitted by municipalities in compliance with the act of December 6, 1972 (P. L. 1383, No. 293) (53 P. S. § § 730.1—730.5) or the act.

(2) The Department of Community Affairs will calculate the municipal financial indicators under Chapter 5 of the act using the applicable municipal finance data submitted to and compiled by the Department of Community Affairs. The Secretary of the Department of Community Affairs, or a designee, will annually certify the municipal financial indicators for municipalities to the Executive Director of the Commission by June 15.

(c) The Commission will transmit an individual notification of the distress determination to a municipality applying for a distress determination under this section and to a municipality that has previously elected to participate in the recovery program by August 15 of each year. An election form will be enclosed with the notification of the distress determination transmitted to a municipality.

(d) A municipality initially electing to participate in the recovery program shall file an election form with the Commission by the last business day in October following the receipt of the notification of the distress determination. The governing body of the municipality shall adopt a resolution specifying the applicable recovery program provisions to be implemented or utilized by the municipality. An official copy of the municipal resolution shall be submitted with the election form to the Commission.

(e) If a municipality has previously elected to participate in the recovery program, the municipality’s initial election form and municipal resolution shall be considered as continuing until the municipality elects to modify the recovery program level or specific remedies previously elected. The governing body of a municipality electing to modify the recovery program level or specific remedies previously elected shall adopt a resolution amending or replacing the original resolution. An official copy of the resolution shall be submitted to the Commission accompanied by an election form specifying the modified level or recovery program provisions to be implemented or utilized by the municipality. The municipal resolution and election form shall be filed with the Commission by the last business day in October preceding the beginning of the plan year during which the modified recovery program provisions will be implemented.

(f) If the Commission determines that a municipality that has elected to participate in the recovery program is in compliance with applicable mandatory recovery program provisions, the Commission will certify compliance to the municipality annually before the last business day in December. The recovery program provisions specified on the election form may be implemented or continued upon certification of compliance issued by the Commission.

(g) The address to which a letter of intent and election form shall be mailed is: Commonwealth of Pennsylvania, Public Employee Retirement Study Commission, Post Office Box 1429, Harrisburg, Pennsylvania 17105-1429.

(h) The Commission will accept as timely filed a letter of intent or election form that bears a United States Postal Service postmark dated on or before the applicable filing deadlines established in this section.

The provisions of this § 205.1 adopted December 18, 1987, effective December 19, 1987, 17 Pa. B. 5234; amended July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839. Immediately preceding text appears at serial pages (123173) to (123175).

History

• Authority: The provisions of this Chapter 205 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this § 205.7 adopted December 18, 1987, effective December 19, 1987, 17 Pa. B. 5234; amended July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839. Immediately preceding text appears at serial page (138249).

16 Pa. Code § 205.2 Delayed implementation of funding standard.

(a) Delayed implementation of funding standard over 10 years. A municipality implementing section 607(g) of the act (53 P. S. § 895.607(g)), authorizing delayed implementation of the funding standard over 10 years, is required to appropriate in the budget of the municipality prepared in 1985 and to contribute to each municipal pension plan in 1986, an amount equal to not less than the municipal contribution to the municipal pension plan made in 1985 and 10% of the difference between that amount and the full minimum municipal obligation with respect to the pension plan under section 302 or 303 of the act (53 P. S. § § 895.302 or 895.303), whichever is applicable. For a subsequent year during the delayed implementation period, the municipality shall appropriate and make a municipal contribution to each municipal pension plan of an amount equal to not less than the municipal contribution to the municipal pension plan made in the immediately preceding year and the following percentage of the difference between that amount and the full minimum municipal obligation with respect to the pension plan under section 302 or 303 of the act, whichever is applicable:

(b) Delayed implementation of funding standard over 15 years. A municipality implementing section 607(h) of the act, authorizing delayed implementation of the funding standard over 15 years, is required to appropriate in the budget of the municipality prepared in 1985 and to contribute to each municipal pension plan in 1986, an amount equal to not less than the municipal contribution to the municipal pension plan made in 1985 and 6.7% of the difference between that amount and the full minimum municipal obligation with respect to the pension plan under section 302 or 303 of the act, whichever is applicable. For a subsequent year during the delayed implementation period, the municipality shall appropriate and make a municipal contribution to each municipal pension plan of an amount equal to not less than the municipal contribution to the municipal pension plan made in the immediately preceding year and the following percentage of the difference between that amount and the full minimum municipal obligation with respect to the pension plan under section 302 or 303 of the act, whichever is applicable:

(c) Increase in unfunded accrued liability for municipalities that are financially distressed. For a municipal pension plan of a municipality which has been determined to be financially distressed and to which a remedy of delayed implementation of the funding standard under section 607(g) or (h) of the act is applicable, increases in the unfunded accrued actuarial liability of the municipal pension plan attributable solely to the amortization of the unfunded accrued actuarial liability on a level percentage of payroll basis will not be deemed to be an actuarial experience loss within the meaning of section 202(b)(3)(V) or (4)(V) of the act (53 P. S. § 895.202(b)(3)(V) or (4)(V)).

(d) Continuation of amortization based on level percentage of payroll. For a municipal pension plan for which the municipality has elected to calculate the annual amortization contribution for the unfunded liability existing as of the beginning of the 1985 plan year on the basis of a level percentage of future increasing covered payroll, the portion of the amortization contribution attributable to that increment of unfunded actuarial accrued liability shall continue to be calculated on the same basis for each remaining year of the amortization period. If the municipality, by formal action of the governing body, permanently rescinds its prior election to use a level percentage of payroll basis for amortization of the applicable increment of unfunded actuarial accrued liability, the remaining balance of the applicable increment of unfunded actuarial accrued liability shall be amortized over the remaining years of the initial amortization period on a level dollar basis.

(e) Reduction of amortization period. For a municipal pension plan for which the municipality has elected to amortize the unfunded actuarial accrued liability existing as of the beginning of the 1985 plan year over a 40-year period under section 607(h) of the act, the municipality may, by formal action of the governing body, permanently rescind its prior election and amortize the remaining balance of the applicable increment of unfunded actuarial accrued liability by the end of the plan year occurring in calendar year 2015.

(f) Definition of municipal contribution. For the purpose of calculating the amount of the required contributions to the pension plan under section 607(g) or (h) of the act (53 P. S. § 895.607(g) and (h)) for plan years commencing after December 31, 1991, the term ‘‘municipal contribution’’ means the total contributions made by the municipality, including allocations of General Municipal Pension System State Aid.

(g) Termination of delayed implementation of funding standard. If a municipality provides aggregate funding to a municipal pension plan that satisfies the full minimum municipal obligation determined under section 302 or section 303 of the act (53 P. S. § § 895.302 and 895.303), the municipality may not subsequently delay implementation of the funding standard under section 607(g) or (h) of the act in that municipal pension plan.

The provisions of this § 205.2 adopted December 18, 1987, effective December 19, 1987, 17 Pa.B. 5234; amended July 28, 1989, effective July 29, 1989, 19 Pa.B. 3161; amended July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839. Immediately preceding text appears at serial pages (123175) to (123176) and (138247).

History

• Authority: The provisions of this Chapter 205 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this § 205.7 adopted December 18, 1987, effective December 19, 1987, 17 Pa. B. 5234; amended July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839. Immediately preceding text appears at serial page (138249).

16 Pa. Code § 205.3 Aggregation of municipal pension plan assets.

(a) Implementation of the aggregation of municipal pension plans assets into a single pension trust fund under section 607(b) of the act (53 P. S. § 895.607(b)) shall be subject to the provisions of a prior contract for the administration of a pension fund that clearly preclude the transfer of the legal title of the assets and the disbursement of the assets as one or more of the following: interfund loan, interfund advance, intrafund loan or intrafund advance. A new contract or amendment to a prior contract shall provide for the aggregation of municipal pension plan assets under section 607(b) of the act.

(b) A municipality participating in level II of the recovery program that intends to establish eligibility for Supplemental State Assistance and a municipality participating in level III of the recovery program shall submit to the Commission, by September 30, 1987, or September 30 of the year following the year in which the municipality first elects to participate in the recovery program, whichever is later, documentation evidencing the implementation of an aggregated pension trust fund in accordance with section 607(b) of the act. The documentation shall be prepared in accordance with instructions issued by the Commission and transmitted to each municipality participating in level II or level III of the recovery program.

This section cited in 16 Pa. Code § 205.8 (relating to Supplemental State Assistance).

History

• Authority: The provisions of this Chapter 205 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this § 205.7 adopted December 18, 1987, effective December 19, 1987, 17 Pa. B. 5234; amended July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839. Immediately preceding text appears at serial page (138249).

16 Pa. Code § 205.4 Revised benefit plan for newly hired municipal employes.

A municipality participating in level III of the recovery program shall submit to the Commission, by September 30, 1987, or September 30 of the year following the year in which the municipality first elects to participate in the recovery program, whichever is later, documentation evidencing the establishment of a revised benefit plan for newly hired municipal employes in accordance with section 607(e) of the act (53 P. S. § 895.607(e)). The documentation shall be prepared in accordance with instructions issued by the Commission and transmitted to each municipality participating in level III of the recovery program.

This section cited in 16 Pa. Code § 205.8 (relating to Supplemental State Assistance).

History

• Authority: The provisions of this Chapter 205 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this § 205.7 adopted December 18, 1987, effective December 19, 1987, 17 Pa. B. 5234; amended July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839. Immediately preceding text appears at serial page (138249).

16 Pa. Code § 205.5 Plan for administrative improvements.

A municipality participating in level III of the recovery program shall submit to the Commission, by September 30, 1987, or September 30 of the year following the year in which the municipality first elects to participate in the recovery program, whichever is later, a comprehensive plan for administrative improvements in the pension plans prepared in accordance with section 607(i) of the act (53 P. S. § 895.607(i)) and with instructions issued by the Commission and transmitted to each municipality participating in level III of the recovery program.

This section cited in 16 Pa. Code § 205.8 (relating to Supplemental State Assistance).

History

• Authority: The provisions of this Chapter 205 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this § 205.7 adopted December 18, 1987, effective December 19, 1987, 17 Pa. B. 5234; amended July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839. Immediately preceding text appears at serial page (138249).

16 Pa. Code § 205.6 Identification and utilization of omitted municipal revenue sources.

A municipality participating in level II or level III of the recovery program shall submit to the Commission, by September 30, 1987, or September 30 of the year following the year in which the municipality first elects to participate in the recovery program, whichever is later, documentation evidencing the identification and utilization of omitted municipal revenue sources in accordance with section 401 of the act (53 P. S. § 895.401). The documentation shall be prepared in accordance with instructions issued by the Commission and transmitted to each municipality participating in level II or level III of the recovery program.

This section cited in 16 Pa. Code § 205.8 (relating to Supplemental State Assistance).

History

• Authority: The provisions of this Chapter 205 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this § 205.7 adopted December 18, 1987, effective December 19, 1987, 17 Pa. B. 5234; amended July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839. Immediately preceding text appears at serial page (138249).

16 Pa. Code § 205.7 Emergency loans.

In a year during the existence of the Supplemental State Assistance fund, a municipality to which level III of the recovery program applies and in which there exists the possibility of imminent default during the next 12 consecutive calendar months in the payment of retirement and other benefits by one or more of the pension plans maintained by the municipality may apply to the Commission for a loan under section 607(k) of the act (53 P. S. § 895.607(k)). Applications for emergency loans shall be mailed to the following address: Commonwealth of Pennsylvania, Public Employee Retirement Study Commission, Post Office Box 1429, Harrisburg, Pennsylvania 17105-1429.

The provisions of this § 205.7 adopted December 18, 1987, effective December 19, 1987, 17 Pa. B. 5234; amended July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839. Immediately preceding text appears at serial page (138249).

History

• Authority: The provisions of this Chapter 205 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this § 205.7 adopted December 18, 1987, effective December 19, 1987, 17 Pa. B. 5234; amended July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839. Immediately preceding text appears at serial page (138249).

16 Pa. Code § 205.8 Supplemental State Assistance.

(a) Determination of eligibility for Supplemental State Assistance. Beginning in 1987, the Commission will determine annually, by December 1, the eligibility of each municipality participating in level II or level III of the recovery program to receive an allocation of Supplemental State Assistance in the following year. The determination of eligibility will be based on the following conditions:

(1) The municipality has complied with the actuarial reporting requirements of the act and has filed an actuarial valuation report for each self-insured defined benefit pension plan maintained by the municipality that utilizes the standardized actuarial cost method in section 202(b) of the act (53 P. S. § 895.202(b)) and economic actuarial assumptions within the range of actuarial assumptions in § 203.3 (relating to range of economic actuarial assumptions).

(2) The municipality has implemented the aggregation of pension trust funds under section 607(b) of the act (53 P. S. § 895.607(b)) and has submitted documentation to the Commission in accordance with § 205.3 (relating to aggregation of municipal pension plan assets).

(3) If participating in level III of the recovery program, the municipality has established a revised benefit plan for newly hired municipal employes under sections 606(b)(2) and 607(e) of the act and has submitted documentation to the Commission in accordance with § 205.4 (relating to revised benefit plan for newly hired municipal employes).

(4) If participating in level III of the recovery program, the municipality has prepared, submitted and implemented a plan for administrative improvements under sections 606(b)(3) and 607(i) of the act and § 205.5 (relating to plan for administrative improvements).

(5) The municipality has demonstrated prior good faith compliance with the applicable municipal pension plan actuarial funding standard, as determined by the Commission based on actuarial valuation reports submitted by the municipality in compliance with the reporting requirements of Chapter 2 of the act (53 P. S. § § 895.201—895.208).

(6) The municipality has identified and utilized omitted municipal revenue sources under section 401 of the act (53 P. S. § 895.401) and has submitted documentation to the Commission in accordance with § 205.6 (relating to identification and utilization of omitted municipal revenue sources).

(b) Determination of allocations of Supplemental State Assistance. Beginning in 1987, the Commission will calculate annually the allocation of Supplemental State Assistance payable to each eligible municipality in the following year. The calculations will be based on the most recent distress determination score of the municipality and on the full minimum municipal obligation and actual municipal contributions applicable to the most recent plan year for which actual municipal contributions have been reported on the actuarial valuation report filed with the Commission under Chapter 2 of the act.

(c) Certification of required Supplemental State Assistance appropriation. Beginning in 1987, the Commission will certify annually to the Governor and the General Assembly, by December 1, the required amount of the appropriation to the Supplemental State Assistance Account for the following fiscal year. The amount certified shall be the total amount of Supplemental State Assistance allocations determined by the Commission to be payable to eligible municipalities in the fiscal year for which the appropriation is applicable. The certification shall be transmitted to the Governor, the Secretary of the Budget, the President Pro Tempore of the Senate, the Speaker of the House and the Chairpersons of the House and Senate Appropriations Committees.

(d) Certification of allocations of Supplemental State Assistance. Beginning in 1988, the Commission will certify annually to the Auditor General, by October 15, the amount of Supplemental State Assistance to which each eligible municipality is entitled.

(e) Authorized use of Supplemental State Assistance. Supplemental State Assistance received by a municipality shall be deposited, within 30 days of receipt by the treasurer of the municipality, in the pension funds or alternate funding mechanisms applicable to the respective pension plans. The proportion of the total amount of the municipality’s allocation of Supplemental State Assistance that shall be credited to each pension plan shall be determined by the governing body of the municipality. The municipality’s allocation of Supplemental State Assistance may not offset any portion of the required municipal contributions to the pension plans as determined under the actuarial funding standard specified in section 302 or 303 of the act (53 P. S. § 895.302 or 895.303) as modified, if applicable, by section 607(g) or (h) of the act (53 P. S. § 895.607(g) or (h)).

History

• Authority: The provisions of this Chapter 205 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this § 205.7 adopted December 18, 1987, effective December 19, 1987, 17 Pa. B. 5234; amended July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839. Immediately preceding text appears at serial page (138249).

Chapter 207 Certification of Municipal Pension Costs

16 Pa. Code § 207.1 Procedure for determination of actual financial requirements for municipal pension plans.

The Commission will determine annually the actual financial requirement for each municipal pension plan based on the data contained in the most recent complete report required to be filed by the municipality under the act or the act of December 5, 1972 (P. L. 1383, No. 293) (53 P. S. § § 730.1—730.5).

(1) If the financial requirements of the pension plan are determined under section 302 of the act (53 P. S. § 895.302), the actual financial requirement shall be equal to the sum of the normal cost plus the administrative expenses less the amount of member contributions anticipated receivable for the following year plus, if applicable, amortization contribution requirements or funding adjustments. The administrative expenses included in the actual financial requirement shall be equal to one-half of the sum of the prior year’s administrative expenses plus the estimated current year’s administrative expenses.

(2) If the financial requirements of the pension plan are determined under section 303 or 402(f)(3) of the act (53 P. S. § 895.303 or 895.402(f)(3)), the actual financial requirement shall be equal to the financial requirements less the amount of member contributions anticipated receivable for the following year and, if applicable, funding adjustments.

(3) The actual financial requirement determined for a pension plan may not be less than zero dollars.

The provisions of this § 207.1 adopted December 18, 1987, effective December 19, 1987, 17 Pa. B. 5234; amended July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839. Immediately preceding text appears at serial page (123183).

History

• Authority: The provisions of this Chapter 207 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this § 207.4 adopted July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839.

16 Pa. Code § 207.2 Procedure for certifications of actual financial requirements for municipal pension plans.

The Commission will certify annually to the Auditor General the actual financial requirements for each municipality eligible to receive General Municipal Pension System State Aid and for each regional or joint pension plan.

(1) For a municipality determined by the Commission to be in compliance with the reporting requirements established in Chapter 2 of the act (53 P. S. § § 895.201—895.208) as of July 15, the Commission will certify the actual financial requirements for the eligible recipient municipality to the Auditor General by August 15.

(2) For a municipality determined by the Commission to be delinquent in complying with the reporting requirements established in Chapter 2 of the act as of July 15, the Commission will certify the actual financial requirements for each eligible recipient municipality to the Auditor General within 30 days of the date the municipality is determined by the Commission to be in compliance with the reporting requirements in Chapter 2 of the act.

The provisions of this § 207.2 adopted December 18, 1987, effective December 19, 1987, 17 Pa. B. 5234.

History

• Authority: The provisions of this Chapter 207 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this § 207.4 adopted July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839.

16 Pa. Code § 207.3 Components of annual certification of actual financial requirements.

The annual certifications of the actual financial requirements for a municipality made to the Auditor General by the Commission will include the actual financial requirement of the pension plan established for police officers, the actual financial requirement of the pension plan established for firefighters and the actual financial requirement of the pension plan established for nonuniformed employes. The actual financial requirement certified for each pension plan shall include the employer normal cost expressed as a percentage of the covered payroll of the members of the pension plan and, if applicable, either the amortization contribution requirement or the funding adjustment expressed as a dollar amount. If a municipality has established more than one pension plan for police officers, firefighters or nonuniformed employes, the aggregated actual financial requirements of the individual pension plans established for police officers, firefighters or nonuniformed employes will be certified by the Commission.

The provisions of this § 207.3 adopted December 18, 1987, effective December 19, 1987, 17 Pa. B. 5234.

History

• Authority: The provisions of this Chapter 207 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this § 207.4 adopted July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839.

16 Pa. Code § 207.4 Acceptance of revised actuarial valuation reports.

The Commission may accept revised actuarial valuation reports when benefit changes are retroactively implemented under a court order or arbitration award and effective as of the date of the actuarial valuation or when the original actuarial valuation report contained a material error or omission regarding demographic data, benefit provisions, financial data or actuarial data other than actuarial assumptions. Revised actuarial valuation reports shall be accompanied by a written statement fully disclosing the cause and nature of the omission or error. If a revised actuarial valuation report is received before July 15 and accepted by the Commission, the revised data will be reflected in the current year’s certification of data to the Auditor General. If a revised actuarial valuation report is received on or after July 15 and accepted by the Commission, the revised data will be reflected in the following year’s certification of data to the Auditor General.

The provisions of this § 207.4 adopted July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839.

History

• Authority: The provisions of this Chapter 207 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this § 207.4 adopted July 24, 1992, effective July 25, 1992, 22 Pa. B. 3839.

Chapter 209 Appeal Procedure

16 Pa. Code § 209.1 Procedures on petition for appeal.

(a) Petition for appeal. Under 1 Pa. Code § 31.1 (relating to scope of part), 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure) is applicable to the activities and proceedings held before the Commission, except as otherwise provided in this chapter.

(b) Form and content of petition for appeal. Except as otherwise provided for by statute, a municipality aggrieved by a final decision of the Executive Director may file a written petition with the Commission within 30 calendar days of the decision. The written petition shall contain:

(1) The name and address of the appealing municipality.

(2) A statement of the facts forming the basis of the petition.

(3) A statement that the municipality requests a hearing.

(4) The signature of the chief administrative officer of the municipality.

(5) Other information that the Commission may require.

(c) Designation of presiding officer. The Commission may appoint a presiding officer.

History

• Authority: The provisions of this Chapter 209 issued under the Municipal Pension Plan Funding Standard and Recovery Act (53 P. S. § § 895.101—895.803), unless otherwise noted.
• Source: The provisions of this Chapter adopted December 18, 1987, effective December 19, 1987, 17 Pa.B. 5234, unless otherwise noted.

Chapter 211 Reports on Actuarial Investigations Under Act 293 of 1972

16 Pa. Code § 211.1 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Act—The act of December 6, 1972 (P. L. 1383, No. 293) (53 P. S. § § 730.1—730.5). Actuarial investigation—An evaluative study by an actuary of the status of current assets and pension funds of a pension system, in relationship to the sufficiency of the assets to meet current and future liabilities. The results of the evaluative study shall be reported on forms supplied by the Commission. Commission—The Public Employee Retirement Commission of the Commonwealth. Complete report—The collection of the applicable reporting forms determined to be in compliance with Commission instructions for each type of pension system—that is, municipal employes, police and firemen—of a municipality and copies of actuarial investigations where required by Commission instructions. Requirements for a complete report and the identification of reporting forms are set forth in § 211.6 (relating to complete report). Fireman—A person who holds a position or office in the fire department of a municipality, is paid a regular salary or on a per diem basis, and has pension benefits provided for under a firemen’s pension system. Member—A person who represents past, present or future liability or future potential liability to the pension system, including active members with or without vesting, retired members, eligible beneficiaries and terminated members with vesting. Municipal employe—A person holding a position or office, other than that of a fireman or policeman, under a municipality, and paid a regular salary or on a per diem basis. The term also includes a person who holds a position or office in a police or fire department of a municipality and has pension benefits provided for under a municipal employes’ pension system. Municipality—A city, borough, town, township, county, jointure, Council of Government; a newly created governmental unit, or an authority created by a city, borough, town, township, or county or jointly by any of the political subdivisions. Pension fund—The combined assets of a pension system maintained to provide benefits to pension system members, which include, cash accounts, invested funds, life insurance and annuity contracts. The term, for purposes of the act, does not include a separate deferred compensation plan in which the employe voluntarily agrees to the withholding of a portion of his income by the employer until some future date, usually retirement, at which time the moneys withheld are paid under section 2 of the act of July 18, 1974 (P. L. 472, No. 168) (72 P. S. § 4521.1). Pension reimbursements—Commonwealth contributions to pension systems, from the tax paid upon premiums by foreign fire insurance companies under section 2 of the act of June 28, 1895 (P. L. 408, No. 289) (72 P. S. § 2262) (Repealed), from the tax paid upon premiums by foreign casualty insurance companies under sections 1 and 2 of the act of May 12, 1943 (P. L. 259, No. 120) (72 P. S. § § 2263.1 and 2263.1a), and from other sources of funds which are or may become available to the Commonwealth for contributions to pension systems. Pension system—A plan, fund or program which was heretofore or is hereafter established or maintained by a municipality to the extent that by its express terms or as a result of surrounding circumstances, the plan, fund or program provides retirement income or benefits to municipal employes, police or firemen or to their eligible beneficiaries, regardless of the method of calculating the contributions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan. Police—Persons who hold positions or offices in the police department of a municipality, are paid on a regular salary or per diem basis, and have their pension benefits provided for under a police pension system. Regional pension system—A plan, fund or program which was heretofore or is hereafter established or maintained by two or more cooperating municipalities to the extent that by its express terms or as a result of surrounding circumstances, the plan, fund or program provides retirement income or benefits to municipal employes, police and firemen or to their eligible survivors, regardless of the method of calculating the contributions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan. Reporting forms—Individual forms for the various types of pension systems. Section 211.6 sets forth a list of the forms which are designed by the Commission and are distributed to the municipalities. Valuation date—The date within the required reporting year on which the valuation of the assets and the liabilities of the system is determined or, in the case of a system having no defined benefits, the date within the required reporting year on which valuation of the assets of the system is determined.

History

• Authority: The provisions of this Chapter 211 issued under section 6(a)(15) of the Public Employee Retirement Commission Act (43 P. S. § 1406(a)(15)), unless otherwise noted.
• Source: The provisions of this Chapter 211 adopted October 7, 1994, effective October 8, 1994, 24 Pa.B. 5099, unless otherwise noted.

16 Pa. Code § 211.2 Municipalities required to file a complete report with the Commission.

(a) Under the act, municipalities, through the actuaries employed or retained to make the actuarial investigations, shall file complete reports with the Commission.

(b) If a municipality has not established a pension system or any one or two of the three types of pension systems, the municipality shall still file the applicable reporting form for each possible type of system, indicating that the municipality has not established the particular type of pension system.

(c) Municipalities, as defined by the act, participating in the Pennsylvania Municipal Retirement System under the Pennsylvania Municipal Retirement Law (53 P. S. § § 881.101—881.501), are required to file separate complete reports for their individual pension systems and may not rely on a single complete report filed by the Pennsylvania Municipal Retirement System with the Commission to fulfill their obligations under the act.

(d) A municipality participating in a regional pension system shall individually file a reporting form on that pension system.

(e) If a municipality receives Commonwealth contributions from the tax paid upon premiums by foreign fire insurance companies under section 2 of the act of June 28, 1895 (P. L. 408, No. 289) (72 P. S. § 2262) (Repealed) into a paid firemen’s pension fund as determined and identified by the Auditor General, the municipality shall file a reporting form on that pension system regardless of the internal administration of the pension system.

History

• Authority: The provisions of this Chapter 211 issued under section 6(a)(15) of the Public Employee Retirement Commission Act (43 P. S. § 1406(a)(15)), unless otherwise noted.
• Source: The provisions of this Chapter 211 adopted October 7, 1994, effective October 8, 1994, 24 Pa.B. 5099, unless otherwise noted.

16 Pa. Code § 211.3 Reporting year.

(a) The date of December 31, 1974, shall be the base date in determining the reporting year according to the number of members in a pension system.

(b) The reporting year for municipalities which have less than 50 members in each of its pension systems shall be once every 4 years beginning from the base date.

(c) The reporting year for municipalities which have 50 or more members in any of its pension systems shall be once every 2 years beginning from the base date.

History

• Authority: The provisions of this Chapter 211 issued under section 6(a)(15) of the Public Employee Retirement Commission Act (43 P. S. § 1406(a)(15)), unless otherwise noted.
• Source: The provisions of this Chapter 211 adopted October 7, 1994, effective October 8, 1994, 24 Pa.B. 5099, unless otherwise noted.

16 Pa. Code § 211.4 Filing year and filing deadline.

Complete reports shall be filed with the Commission 90 days after December 31 of the year determined to be the reporting year. The Commission will accept as timely filed, every complete report bearing a United States Postal Service postmark dated 90 days after December 31 of the reporting year. The filing year is the year immediately following the reporting year and is the year within which the 90-day deadline falls.

History

• Authority: The provisions of this Chapter 211 issued under section 6(a)(15) of the Public Employee Retirement Commission Act (43 P. S. § 1406(a)(15)), unless otherwise noted.
• Source: The provisions of this Chapter 211 adopted October 7, 1994, effective October 8, 1994, 24 Pa.B. 5099, unless otherwise noted.

16 Pa. Code § 211.5 Place of filing.

The Commission will receive reporting forms mailed to the following address or other locations as may be designated:

Commonwealth of Pennsylvania Public Employee Retirement Commission Post Office Box 1429 Harrisburg, Pennsylvania 17105-1429

History

• Authority: The provisions of this Chapter 211 issued under section 6(a)(15) of the Public Employee Retirement Commission Act (43 P. S. § 1406(a)(15)), unless otherwise noted.
• Source: The provisions of this Chapter 211 adopted October 7, 1994, effective October 8, 1994, 24 Pa.B. 5099, unless otherwise noted.

16 Pa. Code § 211.6 Complete report.

A complete report shall consist of the following:

(1) An applicable reporting form determined to be in compliance with Commission instructions for each type of pension system for municipal employes, police and firemen. Commission reporting forms shall include Form PC-293C Actuarial Valuation Report.

(2) A copy of the actuarial investigations, when required by the Commission instructions, at the valuation date.

This section cited in 16 Pa. Code § 211.1 (relating to definitions).

History

• Authority: The provisions of this Chapter 211 issued under section 6(a)(15) of the Public Employee Retirement Commission Act (43 P. S. § 1406(a)(15)), unless otherwise noted.
• Source: The provisions of this Chapter 211 adopted October 7, 1994, effective October 8, 1994, 24 Pa.B. 5099, unless otherwise noted.

16 Pa. Code § 211.7 Receipt of reporting forms.

(a) If the Commission receives a reporting form which is not in compliance with Commission instructions, the Commission will notify the municipality of the non-compliance within 60 days after the date of the receipt of the reporting form by the Commission.

(b) If a municipality has not received a notice from the Commission within 60 days after the receipt of a reporting form by the Commission, the municipality may assume that the reporting form is in compliance with Commission instructions.

(c) If a municipality has not filed a complete report within the filing deadline, the Commission will notify the municipality of the incompleteness within 60 days after the filing deadline.

History

• Authority: The provisions of this Chapter 211 issued under section 6(a)(15) of the Public Employee Retirement Commission Act (43 P. S. § 1406(a)(15)), unless otherwise noted.
• Source: The provisions of this Chapter 211 adopted October 7, 1994, effective October 8, 1994, 24 Pa.B. 5099, unless otherwise noted.

16 Pa. Code § 211.8 Delinquent reports and consequences.

(a) Delinquent report. A municipality shall be considered delinquent in complying with the act if a complete report is not filed within the filing deadline.

(b) Consequences. Consequences of delinquent reports shall be as follows:

(1) Withholding of pension reimbursements. If a municipality is delinquent in complying with the act, the Commission will cause the Auditor General’s Office to withhold certification for pension reimbursements for the municipality.

(2) Assignment of actuaries. If a municipality has not filed a complete report by October 15 of the filing year and has not notified the Commission that the actuarial investigations or reporting forms, or both, are being prepared, the Commission will retain an actuary who shall perform the actuarial investigations and shall prepare the reporting forms for the municipality. The municipality shall be obligated to reimburse the Commission for the actual expenses incurred.

History

• Authority: The provisions of this Chapter 211 issued under section 6(a)(15) of the Public Employee Retirement Commission Act (43 P. S. § 1406(a)(15)), unless otherwise noted.
• Source: The provisions of this Chapter 211 adopted October 7, 1994, effective October 8, 1994, 24 Pa.B. 5099, unless otherwise noted.

16 Pa. Code § 211.9 Recertification of municipalities to receive pension reimbursements.

If the Commission determines that a delinquent municipality has submitted a complete report, the Commission will cause the Auditor General’s Office to recertify that municipality to receive pension reimbursements previously withheld for noncompliance with the act. The Auditor General’s Office will be notified of the delinquent municipalities’ compliance in the following manner:

(1) If a delinquent municipality files a complete report bearing a United States Postal Service postmark dated on or before September 1 of the filing year, the Commission will cause the municipality to be recertified for pension reimbursements on September 15 of the filing year.

(2) If a delinquent municipality files a complete report bearing a United States Postal Service postmark dated after September 1 of the filing year, the Commission will cause the municipality to be recertified for pension reimbursements within 30 days after the receipt of the complete report by the Commission.

History

• Authority: The provisions of this Chapter 211 issued under section 6(a)(15) of the Public Employee Retirement Commission Act (43 P. S. § 1406(a)(15)), unless otherwise noted.
• Source: The provisions of this Chapter 211 adopted October 7, 1994, effective October 8, 1994, 24 Pa.B. 5099, unless otherwise noted.