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| Injured Worker Administrative Rules |
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PROHIBITED DISCRIMINATION -- ORS 659A.040
REINSTATEMENT/REEMPLOYMENT RIGHTS -- ORS 659A.043 & 659A.046
OREGON ADMINISTRATIVE RULES -- DIVISION 006
(Effective 05-17-2002)
Injured Worker Discrimination
839-006-0100
Purpose and Scope
(1) The Civil Rights Division of the Bureau of Labor and Industries enforces the provisions of ORS 659A.040 to 659A.052, prohibiting discrimination against employees who use the Workers´ Compensation statutes and providing specific reinstatement and reemployment requirements.
(2) It is an unlawful employment practice for an employer to discriminate against a worker injured on the job who applies for benefits under or in other ways invokes or uses the Oregon Workers´ Compensation system. An employer may not discriminate against workers who have testified, are about to give testimony, or who are perceived as having testified in connection with Oregon Workers´ Compensation procedures or civil procedures pursuant to ORS 659A.040, 659A.043, 659A.046.
(3) A worker or injured worker claiming a violation under Oregon´s injured worker statutes may file a complaint with the Civil Rights Division as provided in OAR 839-003-0025.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.040 - ORS 659A.052
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 4-1996, f. & cert. ef. 3-12-96; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02
839-006-0105
Definitions
(1) "Attending physician" means a physician primarily responsible for the treatment of a worker´s on-the-job injury as described in ORS 656.005(12).
(2) "Bureau" means the Bureau of Labor and Industries.
(3) "Demand" means the injured worker informing the employer that the worker seeks reinstatement or reemployment.
(4) "Division" means the Civil Rights Division of the Bureau of Labor and Industries.
(5) "Injured worker" means a worker who has a compensable injury as defined in ORS 656.005(7)(a). Injured worker, for purposes of ORS 659A.040, includes a worker who has invoked the protection of the Oregon Workers´ Compensation statutes. Injured worker, for the purposes of reinstatement rights under ORS 659A.043, does not include:
(a) a worker hired on a temporary basis as a replacement for an injured worker;
(b) a seasonal worker hired for and actually employed for less than six months in a calendar year; or
(c) a worker whose employment at the time of the injury resulted from working short terms of employment as the result of referral by a hiring hall operating pursuant to a collective bargaining agreement.
(6) "Invoke," as used in ORS 659A.040, includes, but is not limited to, a worker´s reporting of an on-the-job injury or a perception by the employer that the worker has been injured on the job or will report an injury.
(7) "Release to the former position" means a release to the position a worker held prior to an on-the-job injury as provided in ORS 659A.043.
(8) "Release to an available, suitable position " means a release to work that meets an injured worker´s medical restrictions and for which the worker possesses the necessary skills and abilities as provided in ORS 659A.046. An available, suitable position may vary in duties or hours from the worker´s former position and may be a different position or a modified version of the injured worker´s former position. An available, suitable position is paid at the rate normally paid by the employer for that position.
(9) "Physician" means a person duly licensed to practice medicine or osteopathy and includes the services of a chiropractor for up to 30 days from the date of the injured worker´s first visit on a claim or for 12 visits, whichever occurs first.
(10) "Supervisor" means a person exercising direct supervisory authority over a worker´s position.
(11) "Worker" means any person, including a minor, whether lawfully or unlawfully employed, engaged to furnish services for remuneration, subject to the direction and control of an employer. A worker also includes salaried, elected and appointed officials of the state, state agencies, counties, cities, school districts and other public corporations, whether or not the worker is supervised by the employer. For the purposes of ORS 659A.040, worker also includes an applicant for a job. A worker does not include any person whose services are performed as an inmate or ward of a state institution or any person whose services are performed as part of the eligibility requirements for a public assistance grant, as provided in ORS 656.005(30).
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.040 - ORS 659A.052
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 13-1990(Temp), f. & cert. ef. 9-4-90; BL 3-1991, f. 2-12-91, cert. ef. 2-15-91; BL 4-1996, f. & cert. ef. 3-12-96; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02
839-006-0115
Covered Employees and Employers
(1) As provided in ORS 659A.040, an employer may not discriminate against employees or applicants with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in ORS chapter 656 or ORS 659A.040 to 659A.052 or has given testimony, is about to give testimony or is perceived as having testified under the provisions of such sections. As provided in ORS 659A.046, an employer must reemploy an injured worker who is unable to perform the duties of the worker´s former position to an available, suitable position. "Employer" for the purposes of ORS 659A.040 and 659A.046 includes persons employing six or more employees on a full-time, part-time or seasonal basis at one of the following times:
(a) At the time of the worker´s on-the-job injury;
(b) At the time of the injured worker´s demand for reemployment under ORS 659A.046; or
(c) At the time of the discriminatory act alleged under ORS 659A.040.
(2) As provided in ORS 659A.043, an employer must reinstate an injured worker to the worker´s former position. If the former position no longer exists the employer must offer the worker a vacant, suitable position. "Employer" for the purposes of ORS 659A.043 are those employing 21 or more workers at one of the following times:
(a) At the time of the worker´s on-the-job injury; or
(b) At the time of the worker´s demand for reinstatement to the worker´s former position under ORS 659A.043.
(3) The "six or more persons" referred to in section (1) and the "21 or more employees" referred to in section
(2) need not be employed within Oregon.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.100, ORS 659A.040, ORS 659A.043 - ORS 659A.046 & ORS 659A.049
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 13-1990(Temp), f. & cert. ef. 9-4-90; BL 3-1991, f. 2-12-91, cert. ef. 2-15-91; BL 4-1996, f. & cert. ef. 3-12-96; BL 10-1996, f. & cert. ef. 12-4-96; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02
839-006-0117
Prohibited Discrimination
(1) Pursuant to ORS 659A.040, unlawful employment practices include:
(a) Refusal to hire or promote, to bar or discharge from employment or to discriminate in compensation, terms, conditions or privileges of employment because a person applies for benefits under or in other ways invokes or uses Oregon Worker´s Compensation system as provided for in ORS Chapter 656.
(b) Discriminating against a person who has testified, is about to give testimony, or who is perceived as having testified in connection with Oregon Worker´s Compensation procedures or civil procedures pursuant to ORS 659A.040, 659A.043 and 659A.046.
(2) Pursuant to ORS 659A.030(1)(g), it is an unlawful employment practice for a person, whether an employer or employee, to aid, abet, incite, compel or coerce an individual to do any of the acts forbidden by ORS 659A.040 to 659A.052, or attempt to do so.
(3) When disciplining workers for excessive absenteeism, an employer cannot count the time an injured worker is off the job because of a compensable injury when calculating the injured worker´s absenteeism rate, as long as the time off the job is covered by time loss compensation or are absences medically certifiable by the attending physician in connection with the compensable injury.
(4) A person claiming a violation under Oregon´s injured worker statutes may file a complaint with the Civil Rights Division as provided in OAR 839-003-0025.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.030(1)(g), ORS 659A.040 & ORS 659A.820
Hist.: BLI 10-2002, f. & cert. ef. 5-17-02
839-006-0130
Injured Worker Reinstatement Under ORS 659A.043
(1) An employer with 21 or more employees at the time of a worker´s on-the-job injury or at the time an injured worker demands reinstatement to the former position must reinstate the worker to the worker´s former position if:
(a) The injured worker´s former position still exists (has not been eliminated for bona fide reasons). The former position "exists" even though the position may have been renamed or reclassified;
(b) The injured worker´s former position is available. A worker´s former position is "available" even if that position has been filled by a replacement worker while the injured worker was absent and regardless of the employer´s possible preference for the replacement worker;
(c) The injured worker is physically able to perform the duties of the former position; and
(d) Timely demand is made as provided in OAR 839-006-0130(5)(d).
(2) If the former position exists but is not available (due to seniority or other employment restrictions contained in a valid collective bargaining agreement that the injured worker does not meet), the employer must offer the injured worker a vacant, suitable position.
(a) For the purposes of ORS 659A.043, a suitable position is one that is most similar to the former position in compensation, duties, responsibilities, skills, location, duration (full or part-time, temporary or permanent), and shift.
(b) If a suitable position is not available at the worker´s normal work location the employer must consider vacant, suitable positions in all the employer´s facilities within reasonable commuting distance, not just the facility where the injured worker was previously employed.
(c) Prior to beginning a vacant, suitable position, the injured worker has the right to discuss position duties with the employer and to receive written clarification of the specific duties.
(3) At the time of the injured worker´s demand for reinstatement, if the worker´s former position no longer exists and no other position exists that is vacant and suitable, the injured worker must follow the employer´s reporting policy until the employer offers the worker the former position or a vacant, suitable position. The employer´s reporting policy must be written, non-discriminatory and effectively made known to the employer´s work force. If the employer has no such reporting policy, the employer may require the injured worker to inform the employer of any change in address and telephone number within ten days of the change, provided the employer gives prior written notice of this requirement to the injured worker.
(4) An attending physician´s approval for an injured worker´s return to the former position is prima facie evidence of the injured worker´s physical ability to perform the duties of the former position. The employer may require the worker to provide physician approval in writing prior to reinstatement.
(a) In addition to physician approval, the employer may require, within a reasonable period of time and at the employer´s expense, further evidence of the injured worker´s physical ability to perform the duties of the former position. The employer may, in a manner consistent with worker´s compensation regulations, consult the worker´s attending physician regarding the worker´s condition as it relates to the worker´s ability to perform the duties of the former position.
(b) The employer may not question the attending physician´s release as a subterfuge to avoid employer responsibilities under ORS 659A.043.
(5) The injured worker must make demand for reinstatement to the former position according to the employer´s written policy effectively made known to the employer´s workforce. If the employer has no such policy, the injured worker´s demand:
(a) May be oral or written;
(b) Must be made to a supervisor, personnel officer or person in management;
(c) May be made by the injured worker or the injured worker´s attorney; and
(d) May be made at any time after the attending physician has released the injured worker for reinstatement to the former position, but no later than seven calendar days after receiving certified mail notice from the insurer or self-insured employer that the worker´s attending physician has released the worker for return to the worker´s former position. For purposes of this section, receipt of notice is deemed to have occurred on the day the worker signs a receipt for the mailing or three days following the deposit of the certified mail with the U.S. Postal Service, whichever occurs first, provided such mail is sent to the worker´s last known address and that address is within the state. If the worker´s last known address is outside of the state, the date of notice is the date the worker signs a receipt for the mailing or seven days after the mailing, whichever occurs first.
(6) Extenuating circumstances may, in very rare instances, extend the time allowed for timely demand for reinstatement.
(7) When the injured worker has not made demand for reinstatement to the former position because the employer has made it known to the worker that reinstatement will not be considered, even if a suitable position is vacant, and that an actual demand would therefore be futile, the division will deem the worker to have made timely demand.
(8) The right of reinstatement is guaranteed by ORS 659A.043. Conditions of reinstatement are subject to seniority and other employment restrictions contained in a valid collective bargaining agreement.
(9) If the injured worker´s former position no longer exists, and there is no vacant, suitable position, the employer has no obligation to create a position for a returning injured worker. If the employer creates such a position, the position may be discontinued at any time.
(10) Except as provided in these rules, an injured worker has no greater right to a position or other employment benefit than if the worker had not been injured.
(11) The duty under ORS 659A.043 to reinstate an injured worker to the worker´s former position extends to a successor employer to the worker´s employer at the time of injury. Determining whether a respondent is a successor employer involves a nine-part test. Not every element of the test need be present to find an employer to be a successor; the facts must be considered together to reach a determination:
(a) Whether respondent had notice of the injured worker at the time of acquiring or taking over the business;
(b) The ability of the predecessor to reinstate the injured worker;
(c) Whether there has been a substantial continuity of business operations;
(d) Whether the respondent uses the same plant as the predecessor;
(e) Whether respondent uses the same or substantially the same work force as the predecessor;
(f) Whether respondent uses the same or substantially the same supervisory personnel as the predecessor;
(g) Whether under respondent the same jobs exist under substantially the same working conditions as under the predecessor;
(h) Whether respondent uses the same machinery, equipment and methods of production as the predecessor;
(i) Whether respondent produces the same product as the predecessor.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.043
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 3-1986, f. & ef. 4-7-86; BL 13-1990(Temp), f. & cert. ef. 9-4-90; BL 3-1991, f. 2-12-91, cert. ef. 2-15-91; BL 4-1996, f. & cert. ef. 3-12-96; BL 10-1996, f. & cert. ef. 12-4-96; BL 2-1998, f. & cert. ef. 2-3-98; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02
839-006-0131
Loss of Reinstatement Rights Under ORS 659A.043
(1) An injured worker meeting the requirements for reinstatement under ORS 659A.043 loses the right to reinstatement to the worker´s former position when any of the following occurs:
(a) An attending physician or a medical arbiter determines the injured worker is medically stationary, but not physically able to return to the worker´s former position;
(b) The worker is eligible for and participates in vocational assistance under ORS 656.340;
(c) The worker accepts suitable employment with another employer after becoming medically stationary;
(d) The worker, prior to becoming medically stationary, refuses the employer´s bona fide offer of an available, suitable position;
(e) The worker fails to make demand for reinstatement to the former position within seven days of receiving certified notice from the insurer or self-insured employer that the worker´s attending physician has released the worker to the former position, as provided in OAR
839-006-0130(5)(d);
(f) Three years have elapsed from the date of injury;
(g) The worker is discharged for bonafide reasons not connected with the injury and for which others are or would be discharged; or
(h) The worker clearly and unequivocally abandons employment with the employer.
(2) The right to reinstatement does not apply to:
(a) A worker hired on a temporary basis as a replacement for an injured worker;
(b) A seasonal worker hired for and actually employed for less than six months in a calendar year; or
(c) A worker whose employment at the time of injury resulted from referral to short-term employment from a hiring hall operating pursuant to a collective bargaining agreement.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A
Hist.: BL 4-1996, f. & cert. ef. 3-12-96; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02
839-006-0135
Injured Worker Reemployment Under ORS 659A.046
(1) An employer with six or more employees at the time of the worker´s on-the-job injury or at the time of the injured worker´s demand for reemployment must reemploy an injured worker not physically able to perform the worker´s former position to an available, suitable position if:
(a) The injured worker is medically released to perform the duties of the available, suitable position; and
(b) Timely demand is made as provided in OAR 839-006-0135(8)(d).
(2) For the purposes of ORS 659A.046, an available position is one that is vacant and for which the worker meets seniority or other employment restrictions contained in any applicable valid collective bargaining agreement.
(3) For the purposes of ORS 659A.046, a suitable position is one that meets the injured worker´s medical restrictions and for which the worker possesses the necessary skills and abilities. A suitable position is as similar as practicable to the worker´s former position in compensation, duties, responsibilities, skills, location, duration (full or part-time, temporary or permanent) and shift. A suitable position under ORS 659A.046 is paid at the rate normally paid by the employer for that position.
(4) Prior to beginning an available, suitable position, the injured worker has the right to discuss the duties of the available, suitable position with the employer and to receive written clarification of the specific duties.
(5) Notwithstanding OAR 839-006-0136(6), an injured worker who meets the requirements of ORS 659A.046 and who has been placed in an available, suitable position is entitled to remain in the position, provided the worker´s restrictions continue to allow the worker to perform the duties of the position and the position is not eliminated for bonafide reasons. If an injured worker recovers to the point that the worker can perform the duties of the worker´s former position, the worker must make timely demand for reinstatement to the former position, subject to OAR 839-006-0130.
(6) At the time of the injured worker´s demand for reemployment, a suitable position may not be available. When this occurs, the injured worker must follow the employer´s reporting policy until the employer offers the injured worker an available, suitable position. The employer´s reporting policy must be written, non-discriminatory, and effectively made known to the employer´s work force. If the employer has no such reporting policy, the employer may require the injured worker to inform the employer of any change in address and telephone number within ten days of the change, provided the employer gives prior written notice of this requirement to the injured worker.
(a) If an employer has no suitable position available, the employer has no obligation to create a position for a returning injured worker. If the employer creates such a position, the position may be discontinued at any time. A modified version of the worker´s former position is not a created position.
(b) If a suitable position is not available at the time an injured worker´s attending physician finds the worker to be medically stationary but unable to perform the duties of the former position, the injured worker continues to retain the right to be reemployed in an available, suitable position for three years from the date of the injury, provided no other conditions of OAR 839-006-0136 have occurred.
(7) An attending physician´s approval for an injured worker´s return to an available, suitable position is prima facie evidence of the injured worker´s physical ability to perform the available, suitable position. The employer may require the worker to provide physician approval in writing prior to reemployment to the available, suitable position.
(a) The employer may require, within a reasonable period of time and at the employer´s expense, further evidence of the worker´s physical ability to perform the available, suitable position. The employer may, consistent with worker´s compensation regulations, consult the worker´s attending physician regarding the worker´s condition as it relates to the worker´s ability to perform the available, suitable position.
(b) The employer may not question the attending physician´s release as a subterfuge to avoid employer responsibilities under ORS 659A.046.
(8) The injured worker must make demand for reemployment to an available, suitable position according to the employer´s written policy effectively made known to the employer´s workforce. If the employer has no such policy, the injured worker´s demand:
(a) May be oral or written;
(b) Must be made to a supervisor, personnel officer or person in management;
(c) May be made by the injured worker or the injured worker´s attorney; and
(d) May be made any time after the attending physician has released the injured worker to an available, suitable position, but no later than seven calendar days after receiving certified mail notice from the insurer or self-insured employer that the worker´s attending physician has released the worker for reemployment to an available, suitable position. For purposes of this section, receipt of notice is deemed to have occurred on the day the worker signs a receipt for the mailing or three days following the deposit of the certified mail with the U.S. Postal Service, whichever occurs first, if such mail is sent to the worker´s last known address and that address is within the state. If the worker´s last known address is outside the state, the date of notice is the date the worker signs a receipt for the mailing or seven days after the mailing, whichever occurs first;
(9) Extenuating circumstances may, in very rare instances, extend the time allowed for timely demand for reemployment.
(10) When the injured worker has not made demand for reemployment to an available, suitable position because the employer has made it known to the worker that reemployment will not be considered even if a suitable position is available and that an actual demand would therefore be futile, the division will deem the worker to have made timely demand.
(11) The right of reemployment is guaranteed by ORS 659A.046. Conditions of reemployment are subject to seniority and other employment restrictions contained in a valid collective bargaining agreement.
(12) Except as provided in these rules, an injured work has no greater right to a position or other employment benefit than if the worker had not been injured.
(13) The duty under ORS 659A.046 to reemploy an injured worker to an available, suitable position extends to a successor employer to the worker´s employer at the time of injury. Determining whether a respondent is a successor employer involves a nine-part test. Not every element of the test need be present to find an employer to be a successor; the facts must be considered together to reach a determination:
(a) Whether respondent had notice of the injured worker at the time of acquiring or taking over the business;
(b) The ability of the predecessor to reemploy the injured worker;
(c) Whether there has been a substantial continuity of business operations;
(d) Whether the respondent uses the same plant as the predecessor;
(e) Whether respondent uses the same or substantially the same work force as the predecessor;
(f) Whether respondent uses the same or substantially the same supervisory personnel as the predecessor;
(g) Whether under respondent the same jobs exist under substantially the same working conditions as under the predecessor;
(h) Whether respondent uses the same machinery, equipment and methods of production as the predecessor;
(i) Whether respondent produces the same product as the predecessor.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.046
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 3-1986, f. & ef. 4-7-86; BL 13-1990(Temp), f. & cert. ef. 9-4-90; BL 3-1991, f. 2-12-91, cert. ef. 2-15-91; BL 4-1996, f. & cert. ef. 3-12-96; BL 2-1998, f. & cert. ef. 2-3-98; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02
839-006-0136
Loss of Reemployment Rights Under ORS 659A.046
An injured worker meeting the requirements for reemployment under ORS 659A.046 loses the right to reemployment to an available, suitable position when any of the following occurs:
(1) The worker´s attending physician or a medical arbiter determines, after the worker is medically stationary, that the worker cannot return to reemployment at any position with the employer;
(2) The worker is eligible for and participates in vocational assistance under ORS 656.340;
(3) The worker accepts suitable employment with another employer after becoming medically stationary;
(4) The worker, prior to becoming medically stationary, refuses the employer´s bona fide offer of an available, suitable position.
(5) The worker fails to make demand for reemployment to an available, suitable position within seven days of receiving certified mail notice from the insurer or self-insured employer that the worker´s attending physician has released the worker for reemployment to an available, suitable position, as provided in OAR 839-006-0135(8)(d);
(6) Three years have elapsed from the date of injury;
(7) The worker is discharged for bonafide reasons not connected with the injury and for which others are or would be discharged; or
(8) The worker clearly and unequivocally abandons employment with the employer.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.046
Hist.: BL 4-1996, f. & cert. ef. 3-12-96; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02
839-006-0145
Suitable Employment
(1) An employer required to return an injured worker to a vacant, suitable position under ORS 659A.043 or an available, suitable position under 659A.046, is not required to offer the worker a selection of suitable positions. In determining whether a particular position is suitable, the division will consider the employer´s size, diversity, nature and pattern of position openings and whether the injured worker is qualified to perform the position.
(2) "Qualified" means:
(a) The injured worker meets minimum standards used by the employer to fill the position;
(b) The injured worker has performed the position in an acceptable manner; or
(c) The injured worker would be qualified for the position with the same training given to another worker newly placed in the position.
(3) For the purposes of ORS 659A.043, a "suitable position" is one that is most similar to the former position in compensation, duties, responsibilities, skills, location, duration (full or part-time, temporary or permanent), and shift. For the purposes of ORS 659A.046, a "suitable position" also meets the injured worker´s medical restrictions.
(a) "Similar compensation" is the normal compensation the employer pays to others of the same education, skill and seniority employed in that position. This compensation may be greater than, the same as, or less than the rate the injured worker was earning at the time of injury, provided that it is not a subterfuge for the employer to avoid responsibilities;
(b) "Similar location" means that the position is within reasonable commuting distance, except where the former work site is no longer in operation or the nature of the employer´s business routinely involves the transfer of employees. A position outside of Oregon is suitable if the worker and employer mutually agree.
(4) An employer is neither required to offer nor prohibited from offering a position that would promote the returning injured worker. A managerial or supervisory position is suitable for a returning injured worker whose former position was managerial or supervisory. Should a returning injured worker compete or bid for a managerial or supervisory position, nothing in this rule allows the employer to use the injury as a reason to discriminate against the worker.
(5) The employer may assign the injured worker to different duties at the worker´s regular compensation provided that:
(a) The assignment is temporary and is part of a return-to-work program;
(b) The worker is returned to available and suitable work when the worker is physically capable; and
(c) The assignment is not a subterfuge for the employer to avoid responsibilities.
(6) If an employer offers a position that the injured worker believes the worker is physically unable to perform, the worker is not required to accept the position, but must provide verbal or written notice to the employer that the worker believes the worker is physically unable to perform the duties of the position. The employer may offer a suitable position or may require the worker to provide medical evidence of the worker´s inability to perform the duties of the position. If an employer requires medical verification, the employer must give the worker written notice that the worker has 20 calendar days from the receipt of the notice to provide medical evidence of the worker´s physical inability to perform the duties of the position.
(7) If an injured worker accepts an offer of suitable work and, after beginning the position, the worker is physically unable to perform the duties of the position, the worker must provide verbal or written notice to the employer that the worker believes the worker is physically unable to perform the duties of the position. The employer may offer a suitable position or may require the worker to provide medical evidence of the worker´s inability to perform the duties of the position. If an employer requires medical verification, the employer must give the worker written notice that the worker has 20 calendar days from the receipt of the notice to provide medical evidence of the worker´s physical inability to perform the duties of the position.
(8) If an employer offers an injured worker a position that the worker considers not suitable for reasons other than physical ability, the worker must accept the offered position. The worker must then provide verbal or written notice to the employer that the worker considers the position not suitable. The employer may offer a suitable position or may require the worker to provide the reasons, under the criteria of section (3) of this rule, that the worker considers the position not suitable. If the employer requires such information, the employer must give the worker written notice that the worker has 20 calendar days from the receipt of the notice to provide the reasons in writing.
(9) When an injured worker timely provides the evidence required in sections (6), (7) and (8) of this rule, the position will be considered not suitable and the employer must make a suitable position offer as required under ORS 659A.043 or 659A.046. If the worker fails to timely provide the information requested under sections (6), (7) and
(8) of this rule, or the information is not sufficient, the position will be considered suitable.
(10) If the employer and the injured worker disagree about the suitability of an offered position, and the worker files a complaint as provided by statute and these rules, the division will determine the position´s suitability.
(11) The Civil Rights Division may accept a complaint where a worker did not object to the position offered by the employer as required in sections (6), (7) and (8) of this rule when the worker had a verifiable, legitimate fear that an objection to the offered position would result in an adverse employment action.
(12) If an injured worker makes a timely demand for reemployment to an available, suitable position under ORS 659A.046, an employer is required to review all position vacancies for three years from the date of injury and to offer the injured worker the first available, suitable position provided no other conditions of OAR 839-006-0136 have occurred.
(13) If the injured worker´s former position has been eliminated for bona fide reasons, and the worker makes a timely demand for reinstatement to the worker´s former position under ORS 659A.043, an employer is required to review all position vacancies for three years from the date of injury and to offer the injured worker the first vacant, suitable position provided no other conditions of OAR 839-006-0131 have occurred.
Stat. Auth.: ORS 659A.805 Stats. Implemented: ORS 659A.043 & ORS 659A.046 Hist.: BL 1-1983, f. & ef. 1-26-83; BL 13-1990(Temp), f. & cert. ef. 9-4-90; BL 3-1991, f. 2-12-91, cert. ef. 2-15-91; BL 4-1996, f. & cert. ef. 3-12-96; BL 2-1998, f. & cert. ef. 2-3-98; BLI 14-1999 f. & cert. ef. 10-6-99; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02
839-006-0146
Injured Temporary Workers and Employer Responsibilities
Subject to these rules regarding position availability and suitability, and except as otherwise provided in a valid collective bargaining agreement:
(1) A worker serving on probationary or trial service status (whether due to initial hire, promotion or disciplinary measures) when a compensable injury occurs, has the same rights under ORS 659A.043 and 659A.046 as other injured workers. Upon return to work, however, the injured worker resumes the worker´s probationary or trial service status unless the employer waives such status.
(2) A seasonal worker must be employed by an employer for at least six months in a calendar year to be eligible for reinstatement to the former position under ORS 659A.043. This requirement does not apply to seasonal workers seeking reemployment to an available, suitable position under ORS 659A.046. If the employment season ends prior to a seasonal worker´s release to the former position under ORS 659A.043, or to an available, suitable position under ORS 659A.046, reinstatement or reemployment is deferred until the next season.
(3) A worker hired on a temporary basis as a replacement for an injured worker, and who is injured while in the temporary replacement position, does not have reinstatement rights under ORS 659A.043.
(4) A worker employed in a limited-duration or temporary position has reinstatement and reemployment rights under ORS 659A.043 and 659A.046 as follows:
(a) Under ORS 659A.043, a worker injured on the job while employed
for a limited duration and released to the worker´s former position must be reinstated to the former position, from the date of timely demand until the date the limited duration was originally set to expire;
(b) Under ORS 659A.043, a worker injured on the job while employed in a temporary position ending at the completion of a defined task, and released to the former position, must be reinstated to the former position from the date of timely demand until the task is completed;
(c) Under ORS 659A.046, a worker injured on the job while employed for a limited duration and released to an available, suitable position must be reemployed in the next available, suitable position from the date of timely demand until the date the limited duration was originally set to expire;
(d) Under ORS 659A.046, a worker injured on the job while employed in a temporary position ending at the completion of a defined task and released to an available, suitable position must be reemployed in the next available, suitable position from the date of timely demand until the task is completed.
(5) Nothing in this rule prevents an employer from extending the original period of employment in the worker´s favor.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.043 & ORS 659A.046
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 13-1990(Temp), f. & cert. ef. 9-4-90; BL 3-1991, f. 2-12-91, cert. ef. 2-15-91; BL 4-1996, f. & cert. ef. 3-12-96; BL 2-1998, f. & cert. ef. 2-3-98; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02
839-006-0150
Retention and Loss of Reinstatement and Reemployment Rights
(1) An injured worker does not lose the right to reinstatement or reemployment under ORS 659A.043 or 659A.046 if:
(a) An employer discharges all employees who are off the job for a certain amount of time and discharges the injured worker under this policy for time off covered by time-loss compensation or for absences medically certifiable by the attending physician in connection with the compensable injury.
(b) An employer discharges the injured worker for reasons other than for cause;
(c) An injured worker quits or resigns involuntarily or under mistake of fact;
(d) An injured worker making a timely demand for reinstatement or reemployment takes a position that is not suitable with another employer while waiting for a suitable position to become available; or
(e) An injured worker, physically unable to perform the duties of the worker´s former position, accepts an available, suitable position with the same employer under ORS 659A.046 and these rules.
(2) If an injured worker recovers to the point that the worker can perform the duties of the worker´s former position, the worker must make timely demand for reinstatement to the former position, subject to the requirements of OAR 839-006-0130.
(3) If an injured worker is unable to perform the duties of the former position but is released by the attending physician to perform duties that meet the workers medical restrictions, the worker must make timely demand for reemployment to an available, suitable position, subject to the requirements of OAR 839-006-0135.
(4) Compliance with the duty to mitigate damages by seeking employment with another employer will not extinguish an injured worker´s reinstatement rights, except when the injured worker acquires and commences suitable employment with another employer after becoming medically stationary.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.040, ORS 659A.043 & ORS 659A.046
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 13-1990(Temp), f. & cert. ef. 9-4-90; BL 3-1991, f. 2-12-91, cert. ef. 2-15-91; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02
The Technical Assistance for Employers unit offers employer seminars, handbooks, and other materials covering a number of topics. For additional information, visit our website at www.oregon.gov/boli/ta or call our Employer Assistance line.
Technical Assistance for Employers
Bureau of Labor and Industries
800 NE Oregon Street, Suite 1045
Portland , OR 97232
971-673-0824
www.oregon.gov/boli
These materials were prepared as a general summary and teaching guide. The mission of the Technical Assistance for Employers Program is to promote compliance with civil rights and wage and hour laws through education. Technical Assistance does not provide legal advice. In order to determine the legality of any matter or to protect your legal rights, you should contact an attorney. Check the yellow pages of your telephone directory or contact the Oregon State Bar Lawyer Referral Service at 1-503-620-0222 or 1-800-452-7636. THIS INFORMATION IS AVAILABLE IN AN ALTERNATE FORMAT.
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