SUBSTANTIVE RULES
839-006-0000
Statement of Purpose
The Oregon Safe Employment Act (OSEA): ORS Chapter 654 recognizes the right of employees to have a safe and healthful place in which to work. The Act encourages the active but orderly participation of employees in making the workplace safe and healthful. The Act provides protection to employees who so participate by prohibiting discrimination, in any form, against them because of their complaint about or opposition to health and safety hazards. The Bureau is responsible for enforcing the prohibitions against discrimination contained in ORS 654.062(5). The Bureau does this through its Civil Rights Division. The purpose of this part of these rules is to make available in one place the interpretations of ORS 654.062(5) which guide the Division in implementing this statute.
Stat. Auth.: ORS 659.103
Stats. Implemented: ORS Ch. 654 & 659
Hist.: BL 5-1982, f. & ef. 3-12-82; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0005
General Requirements of ORS 654.062(5)
(1) ORS 654.062(5) of the Oregon Safe Employment Act (OSEA) generally provides that no person can refuse to hire a prospective employee, discharge an employee, or otherwise discriminate against an employee or prospective employee in compensation, terms, conditions, or privileges of employment because that employee or prospective employee:
(a) Opposed any practice forbidden by OSEA;
(b) Made any complaint under or related to OSEA;
(c) Instituted or caused to be instituted any proceeding under or related to OSEA;
(d) Testified or is about to testify in any such proceeding; or
(e) Exercised, on behalf of the employee, other employees or prospective employees any right afforded by OSEA.
(2) Volunteers covered by Oregon Workers' Compensation are protected by OSEA.
(3) ORS 654.062(5) also provides that employees or prospective employees who have reason to believe that they may have been discriminated against can file a complaint with the Civil Rights Division (See OAR 839-003-0025 Filing a Complaint).
(4) Anyone intending to file a complaint may do so by contacting the Civil Rights Division within 30 days of the alleged discriminatory act.
Stat. Auth.: ORS 659.103
Stats. Implemented: ORS Ch. 654 & 659
Hist.: BL 5-1982, f. & ef. 3-12-82; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0010
Persons Prohibited From Discriminating
ORS 654.062(5) states "it is an unlawful employment practice for any person to bar or discharge from employment...". ORS 654.005(7) defines 'person' as "one or more individuals, legal representatives, partnerships, joint ventures, associations, corporations (whether or not organized for profit), business trusts, or any organized group of persons, and includes the state, state agencies, counties, municipal corporations, school districts and other public corporations or subdivisions". Therefore, the prohibitions of ORS 654.062(5) are not limited to actions taken by employers against their own employees. The prohibitions also include actions taken against an employee or prospective employee by unions, employment agencies, or any other person(s) in a position to discriminate against an employee or prospective employee of another person.
Stat. Auth.: ORS 659.103
Stats. Implemented: ORS Ch. 654 & 659
Hist.: BL 5-1982, f. & ef. 3-12-82; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0015
Persons Protected by ORS 654.062(5)
(1) ORS 654.062(5) protects the specific employee or prospective employee who exercises rights under the Act. Such employees are protected whether they exercise these rights on their own behalf or on the behalf of other employees or prospective employees. Employees or prospective employees on whose behalf another employee or person acts are also protected if:
(a) They are perceived to be complaining about or opposing an unsafe or unhealthy workplace; or
(b) The complaint was, in fact, theirs but was made by someone else.
(2) If a complaint has been made, but the employer does not know who complained and the employer retaliates against the employee(s) whom the employer perceives to have complained, or against all employees who may have complained, the employee(s) is protected under ORS 654.062(5).
Stat. Auth.: ORS Ch. 659.103
Stats. Implemented: ORS 654 & 659
Hist.: BL 5-1982, f. & ef. 3-12-82; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0020
Opposition to Practices
(1) ORS 654.062(5) prohibits discrimination against an employee because the employee "opposed" health and safety hazards in the workplace. OSEA does not specify to whom or in what manner an employee can oppose health and safety hazards and be protected. Therefore, what constitutes opposition covers a broad range of activities. For example, an employee may oppose health and safety hazards in a discussion with co-workers which is overheard by management, in a letter to a newspaper read by management or by written protest given to the employer. The concern of ORS 654.062(5) is not with how the opposition is made but with the employer's reaction to the opposition.
(2) Although OSEA does not specify the manner of opposition, the protection of ORS 654.062(5) does not cover an employee who opposes health and safety hazards by refusing to work or by walking off the job, except where an employee may be confronted with a choice of either refusing to do assigned tasks or risking serious injury or death because of a hazardous condition at the workplace, not inherent in the job.
Stat. Auth.: ORS 659.103
Stats. Implemented: ORS Ch. 654 & 659
Hist.: BL 5-1982, f. & ef. 3-12-82; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0100
Purpose and Scope
The Civil Rights Division of the Bureau of Labor and Industries enforces the provisions of ORS 659.410 - 659.420 which prohibit discrimination against those who use the Workers' Compensation statutes and provide specific reinstatement and reemployment requirements. These rules apply to all complaints and inquiries relating to ORS 659.410 - 659.420 received on or after the effective date of these rules.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 654 & 659
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0105
Definitions
As used in these rules unless the context requires otherwise:
(1) "Demand" means the injured worker informs the employer that the worker seeks reinstatement/reemployment.
(2) "Invoke" for the purposes of ORS 659.410 includes 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.
(3)(a) "Physician" means a person duly licensed to practice medicine or osteopathy. "Physician" also includes 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;
(b) "Attending Physician" means a physician who is primarily responsible for the treatment of a worker's compensable injury. (ORS 656.005(12)).
(4)(a) "Worker" means any person, including a minor whether lawfully or unlawfully employed, who engages to furnish services for remuneration, subject to the direction and control of an employer and includes salaried, elected and appointed officials of the state, state agencies, counties, cities, school districts and other public corporations but does not include any person whose services are performed as an inmate or ward of a state institution. (ORS 656.005(23));
(b) For purposes of ORS 659.410, a worker also includes an applicant for a job with an employer who is subject to the Oregon Workers' Compensation Statutes;
(5) "Injured Worker" means a worker who has had a compensable injury as determined by acceptance of the claim under the Oregon Workers' Compensation Statutes. A worker whose claim has been deferred is not an injured worker. A worker hired on a temporary basis as a replacement for an injured worker, a seasonal worker hired for and actually employed for less than six months in a calendar year or a worker working short terms of employment out of a hiring hall operating pursuant to a collective bargaining agreement is not an "injured worker".
(6) "Supervisor" means a person who exercises direct supervisory authority over the position.
(7) As used in these rules the terms "disabled", "physically able" and "physical ability" include mental, emotional and psychological conditions. Example: Job related stress.
Stat. Auth.: ORS 659.103
Stats. Implemented: ORS Ch. 654 & 659
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
839-006-0115
Employers Covered by ORS 659.410 - 659.420
(1) Employers covered by ORS 659.410 and 659.420 are those "who employ six or more persons." "Employ six or more persons" means that an employer has employed at least six employees in Oregon on a full-time, part-time or seasonal basis either:
(a) At the time of the compensable injury; or
(b) At the time of the injured worker's demand under ORS 659.420; or
(c) At the time of the discriminatory act alleged under ORS 659.410.
(2) Employers covered by ORS 659.415 are those employing 21 or more workers at the time of the worker's injury or at the time of the worker's demand for reinstatement.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 659 & 654
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
839-006-0120
Persons Protected by ORS 659.410 -- 659.420
To be protected under ORS 659.410, a person must be a worker as defined in OAR 839-006-0105(4)(a). To have rights under ORS 659.415 and 659.420, a person must be an injured worker as defined in OAR 839-006-0105(5).
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 654 & 659
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
839-006-0121
Procedures Regarding Violation of ORS 659.410 -- 659.420
A worker or injured worker, as defined in these rules, who claims a violation of ORS 659.410, 659.415, or 659.420, may file a complaint with the Civil Rights Division (see OAR 839-003-0025 - Filing a Complaint).
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 654 & 659
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0125
Employers' Responsibilities Under ORS 659.410
An employer may not discriminate against a worker who is protected under ORS 659.410 because the worker is injured on the job, applies for benefits, in other ways invokes or uses the Oregon Workers' Compensation system, has given or is about to give testimony in connection with the Oregon Workers' Compensation procedures or civil procedures pursuant to ORS 659.410, 659.415 and 659.420.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS 659.654
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0130
Injured Worker and Employer Responsibilities Under ORS 659.415
(1) An employer with 21 or more employees at the time of injury or at the time of demand is required to reinstate an injured worker to the injured worker's former position if:
(a) The former job still exists; and
(b) The injured worker is physically able to perform the duties of the former position.
(2) If the former position has been eliminated for bona fide reasons and not merely renamed or reclassified, the employer must offer the injured worker a suitable vacant position.
(a) A suitable position is one which is substantially similar to the former position in compensation, duties, responsibilities, skills, location, duration and shift.
(b) The injured worker shall have the right to discuss and receive clarification in writing of the specific duties of the position with the employer prior to actually commencing work.
(c) At the time of the injured worker's demand for reinstatement, if the former job no longer exists and an alternative job is not available, the injured worker must follow the employer's non-discriminatory and written reporting policy which has been effectively made known to the employer's work force and is practiced by the employer, until the employer offers the injured worker the former job or a suitable alternative. If the employer has no such reporting policy, the injured worker must inform the employer of any change in address and telephone number within ten days of the change.
(3) The attending physician's approval for the injured worker's return to the former job is prima facie evidence of the injured worker's physical ability to perform the former job. The employer may require the worker to provide such approval in writing prior to reinstatement.
(a) Although the attending physician's approval is prima facie evidence, 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 job. The employer may also consult the worker's physician(s) regarding the worker's condition.
(b) The employer may not question the attending physician's certificate as a subterfuge to avoid its responsibilities under ORS 659.415.
(4) The injured worker will make demand for reinstatement according to the employer's written policy. If the employer has no such policy, the injured worker's demand:
(a) May be oral or written; and
(b) Must be made to a supervisor, personnel officer or someone in management; and
(c) May be made at any time after release by the attending physician, but no later than the seventh calendar day following the date the worker is notified by the insurer or self-insured employer by certified mail that the worker's attending physician has released the worker for employment. For purposes of this section, notification shall be deemed to occur three days following the deposit of the certified mail with the United States Postal Service if such mail is sent to the last known address of the injured worker.
(d) May be made by the injured worker, the injured worker's attorney or the Workers' Compensation carrier.
(e) Extenuating circumstances may, in very rare instances, extend the requirement for timely demand.
(f) When the employer has made it known to the worker prior to the injured worker's demand that reinstatement will not be considered, even if a suitable position is vacant, and that an actual demand would therefore be futile, the Division may consider the worker to have made timely demand for the purpose of these rules.
(5) Reinstatement rights are subject to the provisions of a valid collective bargaining agreement.
(6) The employer has no obligation to create a job for a returning injured worker and is under no obligation to continue a particular position if one has been created.
(7) Except as provided in these rules, the injured worker has no greater right to a job or other employment benefit than if the worker had not been injured.
Stat. Auth.: ORS 659.103
Stats. Implemented: ORS Ch. 695
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
839-006-0131
Loss of Reinstatement Rights Under ORS 659.415
(1) An injured worker loses the right to reinstatement when any of the following occurs:
(a) The injured worker is determined to be medically stationary and not physically able to return to the former position;
(b) The worker is eligible 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 refuses a bona fide offer from the employer of light duty or modified suitable employment prior to becoming medically stationary;
(e) Demand for reinstatement is not made by the worker within seven days from the date the worker is notified by the insurer or self-insured employer by certified mail that the worker's attending physician has released the worker to the former position;
(f) Three years have elapsed from the date of injury;
(g) The worker is discharged for reasons not connected with the injury and for which others are or would be discharged;
(h) The worker clearly abandons future 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 employed to work less than six months in a calendar year;
(c) A worker whose employment at the time of injury resulted from referral from a hiring hall to short term employment operating pursuant to a collective bargaining agreement
Stat. Auth.: ORS 659.103
Stats. Implemented: Ch. 659
Hist.: BL 4-1996, f. & cert. ef. 3-12-96
839-006-0135
Injured Worker and Employer Responsibilities Under ORS 659.420
(1) An employer with 6 or more employees is required to re-employ an injured worker not physically able to perform the former job to the most suitable vacant position available if:
(a) The injured worker is medically released to perform the duties of the vacant suitable position; and
(b) Timely demand is made as provided in OAR 839-06-135(4).
(2) A suitable position is one which is as similar as practicable to the former position in compensation, duties, responsibilities, skills, location, duration (full or part-time, temporary or permanent) and shift:
(a) The injured worker shall have the right to discuss and receive clarification in writing of the specific duties of the position with the employer prior to actually commencing work;
(b) At the time of the injured worker's demand for reemployment, a suitable alternative may not be available. When this occurs, the injured worker must follow the employer's non-discriminatory and written reporting policy which has been effectively made known to the employer's work force and is practiced by the employer, until the employer offers the injured worker a suitable position. If the employer has no such reporting policy, the injured worker must inform the employer of any change in address and telephone number within ten days of the change.
(3) The attending physician's approval for the injured worker's return to a suitable position is prima facie evidence of the injured worker's physical ability to perform the job. The employer may require the worker to provide such approval in writing prior to reemployment:
(a) Although the attending physician's approval is prima facie evidence, 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 job. The employer may also consult the worker's physicians regarding the worker's condition;
(b) The employer may not question the attending physician's certificate as a subterfuge to avoid its responsibilities under ORS 659.420.
(4) The injured worker will make demand for reemployment according to the employer's written policy. 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 someone in management; and
(c) May be made at any time after release by the attending physician, but no later than the seventh calendar day following the date the worker is notified by the insurer or self-insured employer by certified mail that the worker's attending physician has released the worker for employment. For purposes of this section, notification shall be deemed to occur three days following the deposit of the certified mail with the United States Postal Service if such mail is sent to the last known address of the injured worker;
(d) May be made by the injured worker, the injured worker's attorney or the Workers' Compensation carrier;
(e) Extenuating circumstances may, in very rare instances, extend the requirement for timely demand;
(f) When the employer has made it known to the worker prior to the injured worker's demand that reemployment will not be considered even if a suitable position is vacant and that an actual demand would therefore be futile, the Division may consider the worker to have made timely demand for the purpose of these rules.
(5) Reemployment rights are subject to the provisions of a valid collective bargaining agreement.
(6) The employer has no obligation to create a job for a returning injured worker and is under no obligation to continue a particular position if one has been created.
(7) Except as provided in these rules, the injured work has no greater right to a job or other employment benefit than if the worker had not been injured.
Stat. Auth.: ORS 659.103
Stats. Implemented: ORS Ch. 659
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
839-006-0136
Loss of Reemployment Rights Under ORS 659.420
An injured worker loses the right to reemployment 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 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 suitable light duty or modified employment.
(5) Demand for employment is not made by the employee within seven days of the date that the worker is notified by the insurer or self-insured employer by certified mail, that the worker's attending physician has released the worker for reemployment.
(6) Three years have elapsed from the date of injury.
(7) The worker is discharged for reasons not connected with the injury and for which others are or would be discharged.
(8) The worker clearly abandons future employment with the employer.
Stat. Auth.: ORS 659.103
Stats. Implemented: ORS Ch. 659
Hist.: BL 4-1996, f. & cert. ef. 3-12-96
839-006-0140
Available/Vacant
If an employer is required to return an injured worker to an available/vacant position, the employer must consider positions in all its facilities within reasonable commuting distance, not just the facility at which the injured worker was previously employed. For the purposes of ORS 659.415, an injured worker's former position is available regardless of the hiring or assignment of a replacement worker.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 659
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
839-006-0145
Suitable
(1) If an employer is required to return an injured worker to suitable employment pursuant to ORS 659.415 or 659.420, the employer does not have to offer the injured worker a selection of suitable jobs. If the employer has several available jobs that would be suitable, the employer may, but is not required to, offer the injured worker a choice of jobs. In determining whether a particular job offer is suitable the Division will consider the employer's size, diversity, nature, and pattern of job openings and whether the injured worker is qualified to perform the job. Qualified means:
(a) The injured worker meets minimum standards used by the employer to fill the job;
(b) The injured worker has previously done the job in an acceptable manner; or
(c) The injured worker would be qualified for the job with the same training given anyone newly assuming the position.
(2) An employer is neither required to offer nor prohibited from offering an alternative position which would promote the returning injured worker.
(3) A suitable job is one that is most similar to the former job in compensation, duties, responsibilities, skills, location, duration (full or part-time, temporary or permanent), and shift:
(a) Similar location means that the job is in Oregon and within reasonable commuting distance, except where the former job site is no longer in operation or the nature of the employer's business routinely involves the transfer of employees. A job outside of Oregon is suitable if the worker and employer mutually agree on it;
(b) Substantially similar compensation is the normal compensation the employer pays to others of the same education, skill, and seniority who are employed to do that job. 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 to avoid the employer's responsibilities.
(4) The employer may assign the injured worker to different duties at the worker's former compensation provided that:
(a) The assignment is temporary and is part of a return-to-work program; and
(b) The worker is returned to available and suitable work when the worker is physically capable; and
(c) The assignment is not a subterfuge to avoid the employer's responsibilities.
(5) If an employer offers a position which the injured worker believes the injured worker is physically unable to perform, the worker is not required to accept the position but must provide medical evidence of inability to perform the job to the employer within ten calendar days of the offer. Unless the worker is able to provide such medical evidence the job will be considered suitable.
(6) If an employer offers an injured worker a job which the worker considers unsuitable for reasons other than physical ability, the worker must accept the job and notify the employer within ten calendar days of the receipt of the offer that the worker considers the job unsuitable and the reasons why.
(7) If the employer and the injured worker disagree about the suitability of a job, and the worker files a complaint as provided by statute and these rules the Division will determine its suitability.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 659
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
839-006-0146
Injured Temporary Workers and Employer Responsibilities Under ORS 659.415 and 659.420
Subject to these rules regarding 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 659.415 and 659.420 as other injured workers, except that upon return to work after timely demand, the injured worker resumes the worker's former status unless waived by the employer.
(2) A seasonal worker must have been employed six months or more in a calendar year to have the same rights as other injured workers under ORS 659.415. A seasonal employee need not have been employed six months to have the same rights, except as affected by the seasonal nature of the employment, as other injured workers under 659.420. Example: If the worker makes timely demand under these rules prior to the end of the season, the worker must be reinstated/reemployed. If the season ends prior to the worker's timely demand, and the worker's employment thus would have ended, the reinstatement/reemployment is deferred until the next seasonal period of employment following the timely demand.
(3) A worker hired as a replacement for an injured worker does not have any rights under ORS 659.415. A worker employed in a limited duration or temporary position has the same rights under ORS 659.415 and 659.420 as other injured workers except as affected by the nature of the original employment:
(a) A worker employed for a limited period of time must be reinstated/reemployed to the next available and suitable position from the date of timely demand until the original time the employment expires;
(b) A worker employed for a temporary position, that ends upon the accomplishment of a defined task, must be reinstated/reemployed to the next available and suitable position from the date of timely demand until the task is accomplished.
(4) Nothing in this rule shall prevent an employer from extending the original period of employment in the worker's favor.
Stat. Auth.: ORS 659.103
Stats. Implemented: ORS Ch. 659
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
839-006-0150
Loss of Reinstatement/Reemployment Rights
(1) Every injured worker has the right to reinstatement/reemployment under ORS 659.415 and 659.420.
(2) An injured worker loses the right to reinstatement to his/her former job under ORS 659.415 if:
(a) A medical determination has been made by the attending physician that the worker is permanently disabled from returning to the former position of employment, or following appeal of such determination, such determination is confirmed by a medical arbiter or panel of medical arbiters pursuant to ORS chapter 656.340;
(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 refuses a bona fide offer from the employer of light duty or modified employment which is suitable prior to becoming medically stationary;
(e) The worker fails to request reinstatement within seven calendar days from the date that the worker is notified by the insurer or self-insured employer by certified mail that the worker's attending physician has released the worker for employment; or
(f) Three years have elapsed since the date of the worker's original injury.
(3) An injured worker loses all rights to reinstatement/reemployment under ORS 659.415 and 659.420 if:
(a) The employer discharges the worker for reasons not connected with the injury and for which others are or would be discharged, except as provided in subsections (4)(a) and (b) of this rule;
(b) The worker refuses an available and suitable job offer under either ORS 659.415 or 659.420;
(c) The worker clearly abandons future employment with the employer; or
(d) The worker fails:
(A) To make timely demand;
(B) To follow the employer's written reporting policy or, in the absence of such policy, these rules' reporting policy; or
(C) To report to work as specified in the employer's suitable job offer.
(4) Subject to sections (1) through (3) of this rule, an injured worker does not lose his/her right to reinstatement/reemployment under ORS 659.415 and 659.420 if:
(a) The employer discharges all employees who are off the job for a certain amount of time. The employer may discharge the injured worker under this policy. The injured worker does not lose his/her reinstatement/reemployment rights;
(b) The employer discharges the injured worker other than for cause or the injured worker quits or resigns involuntarily or under mistake of fact;
(c) After making timely demand for reinstatement/ reemployment, the injured worker takes a job which is not suitable with another employer while waiting for a suitable job to become available.
(5) An injured worker who accepts the employer's suitable job offer under ORS 659.415 has no further rights under this statute based on the compensable injury involved.
(6)(a) An injured worker who is physically unable to perform the duties of his/her former job and who accepts a suitable job with the same employer under ORS 659.420 and these rules, retains reinstatement/reemployment rights under ORS 659.415. If the injured worker recovers to the point that he/she can perform the duties of the former job, the injured worker may make timely demand for the former job, subject to the requirements of OAR 839-006-0130. The employer is then also subject to that section of these rules;
(b) An injured worker who is unable to perform the duties of his/her former job and who refuses a suitable job with the same employer loses the right to reinstatement to the worker's former position.
(7) Notwithstanding OAR 839-006-0130(6) and OAR 839-006-0135(5), compliance with the duty to mitigate damages by seeking employment with another employer shall not extinguish reinstatement rights, except when the injured worker acquires and commences suitable employment with another employer after becoming medically stationary.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS 659.410
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
839-006-0155
Discipline and Termination
(1) Employers who discipline workers for excessive absenteeism cannot count the time an injured worker is off the job because of a compensable injury when calculating the injured worker's absenteeism rate, so long as the time off the job is covered by time loss compensation or other absence medically certified by the treating physician in connection with the compensable injury.
(2) An employer who terminates all employees who are off the job for a certain amount of time may terminate injured workers under the same conditions. An employee so terminated does not lose reinstatement rights under ORS 659.415 and 659.420 unless the employee would have been terminated for reasons unrelated to the injury.
Stat. Auth.: ORS 659.103
Stats. Implemented: ORS Ch. 659
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0165
Effect of a Bargaining Agreement
The reinstatement/reemployment rights under ORS 659.415 and 659.420 are subject to seniority and other employment restriction provisions of a valid collective bargaining agreement.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS 659.415 & 659.420
Hist.: BL 1-1983, f. & ef. 1-26-83
839-006-0170
Effective Date
The provisions of Section 45, Chapter 2, Oregon Laws 1990 (Special Session of May 7, 1990), and these rules, are effective July 1, 1990. They shall apply to cases in which demand for reinstatement occurred on or subsequent to that date. For the purpose of this rule, demand will be deemed to have occurred when the employer is first informed that the injured worker seeks reinstatement/reemployment whether by actual notice or three days following the worker's deposit of the certified mail with the United States Postal Service.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS 659.415 & 659.420
Hist.: BL 13-1990(Temp), f. & cert. ef. 9-4-90; BL 3-1991, f. 2-12-91, cert. ef. 2-15-91
839-006-0200
Policy
It is the public policy of the State of Oregon to guarantee persons with disabilities the fullest possible participation in the social and economic life of the state, including engaging in employment. The people of the state have a right to lawful employment without discrimination due to disability. The Civil Rights Division of the Bureau of Labor and Industries has the responsibility to protect this right through enforcement of ORS 659.400 to 659.435.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 659
Hist.: BL 2-1984, f. & ef. 1-31-84 ; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0201
Purpose and Scope
These rules contain the interpretation of ORS 659.400, 659.405, 659.425 and 659.435, which the Civil Rights Division uses to enforce these sections. These rules apply to all complaints and inquiries relating to these sections received on or after the effective date of these rules.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 659
Hist.: BL 2-1984, f. & ef. 1-31-84; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0205
Definitions
As used in these rules:
(1) "Accommodation" means a modification by the employer of the work site, job duties, or other requirements of a position for the purpose of enabling a person with a disability to perform the work involved. See OAR 839-006-0240.
(2) "Disability" means a physical or mental (including emotional or psychological) impairment which substantially limits one or more major life activities. Disability does not include the current use of illegal drugs.
(3) "Duly licensed health professional", in addition to physicians and osteopathic physicians, includes psychologists, occupational therapists, clinical social workers, dentists, audiologists, speech pathologists, podiatrists, optometrists, chiropractors, naturopaths, physiotherapists, and radiologic technicians insofar as any opinion or evaluation within the scope of the relevant license applies or refers to the individual's physical or mental impairment.
(4) "Major life activity" includes but is not limited to: walking, speaking, breathing, performing manual tasks, hearing, learning, caring for oneself and working in general, considering the person's experience and education, as opposed to performing a particular job.
(5) "Medical" means authored by or originating with a medical or osteopathic physician or duly licensed health professional.
(6) "Misclassified", as used in ORS 659.400 (2)(b), means an erroneous or unsupported medical diagnosis, report, certificate, or evaluation, including an erroneous or unsupported evaluation by a duly licensed health professional.
(7) "Perceived disability" is:
(a) A physical or mental condition which does not limit a major life activity but which is thought to be disabling (example: flu thought to be AIDS); or
(b) The perception of a disability where no condition exists (example: a person who speaks slowly is thought to be mentally impaired); or
(c) A condition disabling only because of the attitude of others (example: disfigurement because of burns).
(8) "Physical or mental impairment" means an apparent or medically detectable condition which weakens, diminishes, restricts or otherwise damages a person's health or physical or mental activity.
(9) "Reasonable accommodation" means a modification as defined in section (1) of this rule, which can be made without undue hardship to the employer. See OAR 839-006-0245.
(10) "Treatment" includes not only examination, evaluation, diagnosis, and therapy by a physician, but also such services when performed by a duly licensed health professional within the scope of the applicable license.
Stat. Auth.: ORS Ch. 651 & 659
Stats. Implemented: ORS Ch. 659
Hist.: BL 2-1984, f. & ef. 1-31-84; BL 15-1990, f. 10-29-90, cert. ef. 11-1-90; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0210
Employers, Employment Agencies and Labor Organizations Prohibited from Discrimination Based on Disability
(1) ORS 659.400(3) limits the employer subject to ORS 659.400 to 659.435 to those "who employ six or more persons". "Employ six or more persons" means that an employer employs at least six employees in Oregon on a full-time, part-time, or seasonal basis at the time of the discriminatory act alleged under ORS 659.425.
(2) "Employment agency" has the same meaning as in ORS 659.010(7).
(3) "Labor organization" has the same meaning as in ORS 659.010(10).
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 659
Hist.: BL 2-1984, f. & ef. 1-31-84; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0215
Persons Protected from Employment Discrimination Based on Disability
(1) ORS 659.425 protects a person with a disability from discrimination by an employer or prospective employer because of a perceived or actual physical or mental impairment which, with reasonable accommodation, does not prevent the performance of the work involved.
(2) ORS 659.425 protects a person with a disability from discrimination because of disability by an employment agency in referral or classification for employment.
(3) ORS 659.425 prohibits labor organizations from discriminating in union membership because of disability.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 659
Hist.: BL 2-1984, f. & ef. 1-31-84; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0220
Procedures Regarding Violation of ORS 659.425
A person who claims a violation of ORS 659.425 may file a complaint with the Civil Rights Division as provided in OAR 839-003-0025.
Stat. Auth.: ORS Ch. 659
Stats. Implemented ORS Ch. 659
Hist.: BL 2-1984, f. & ef. 1-31-84 ; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0225
Ability to Perform; Employee Duties
(1) To come within the protection of ORS 659.425, a person with a disability must be able to perform the essential functions of the position occupied or sought.
(a) "Able to Perform" means:
(A) Possessing the training, experience, education, and skill necessary to perform the duties of the position and normally required by the employer of other candidates for the position; and
(B) Possessing the ability to perform the essential functions of the job safely and efficiently, with reasonable accommodation and without present risk of probable incapacitation. A person occupying a particular position may at any time be evaluated to determine if there is a present risk of probable incapacitation.
(b) "Essential functions" means:
(A) The function or functions for which the position exists; or
(B) A function or functions which only a few people are routinely available to perform; or
(C) A highly specialized function for which the employee has specialized knowledge.
(2) An employer may not use the provisions of this section as a subterfuge to avoid the employer's duty under ORS 659.425.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 659
Hist.: BL 2-1984, f. & ef. 1-31-84; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0230
Exception: Enhanced Risk to Others
Notwithstanding other provisions of these rules, a position which by its very nature includes an inherent risk of injury or incapacitation to co-workers or the general public need not be filled by a person with a disability if, even with reasonable accommodation, the inherent risk is materially enhanced because of the person's impairment.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 659
Hist.: BL 2-1984, f. & ef. 1-31-84; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0235
Inquiries Regarding Ability to Perform; Medical Evaluation
(1) An employer may inquire whether an individual has the ability to perform the duties of the position sought or occupied.
(2) An employer may require a post offer medical evaluation of a person's physical or mental ability to perform the work involved in a position:
(a) The person seeking or occupying a position must cooperate in any medical inquiry or evaluation, including production of medical records and history relating to the person's ability to perform the work involved; and
(b) If the employer requires a medical evaluation as a condition of hire or job placement and the evaluation verifies a physical or mental impairment affecting the ability to perform the work involved, or verifies a present risk of probable incapacitation, the employer may not refuse to hire or place a person based on the person's impairment unless no reasonable accommodation is possible.
(c) The employer shall pay the cost of a medical evaluation or the production of medical records it has requested as provided in ORS 659.330.
(3) When an employer relies on medical evidence to determine whether a person is able to perform the work involved, the Division will consider only medical evidence available to the employer at the time the employment decision was made, including:
(a) Medical evidence known to the employer; and
(b) Medical evidence which should have been known to the employer through reasonable diligence.
(4) An employer may not use the provisions of this section as a subterfuge to avoid the employer's duties under ORS 659.425.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 659
Hist.: BL 2-1984, f. & ef. 1-31-84; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0240
Temporary, Progressive, Mutable Impairments, Particular Conditions
(1) Some impairments may be temporary in nature. Short-term physical or mental impairments leaving no residual disability or impairment are not disabilities within the meaning of the statute and these rules, except where they are erroneously perceived by the employer as disabling or impairing. Examples: a broken leg, an appendectomy or pneumonia.
(2) Conditions which are progressive disabilities such as cancer or Hodgkin's disease and which either do not impair the person's ability to perform the work involved or with reasonable accommodation would not impair the person's ability to perform the work involved may not form the basis for rejection of the individual for a position.
(3) Mutable conditions which are controllable by diet, drug therapy, psychotherapy, or other medical means are disabilities and may not form a basis for rejection of the person for a position as long as the person is able to perform the work involved in the position occupied or sought. A person with a controlled condition who abandons or ignores the controlling therapy loses the protection of ORS 659.425 if the absence of the control removes the ability to perform, as defined. Examples of mutable conditions include: alcoholism, diabetes mellitus or epilepsy.
Stat. Auth.: ORS Ch. 651 & 659
Stats. Implemented: ORS Ch. 659
Hist.: BL 2-1984, f. & ef. 1-31-84; BL 15-1990, f. 10-29-90, cert. ef. 11-1-90; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0245
Reasonable Accommodation/Undue Hardship
ORS 659.425 requires an employer, upon request by an employee with a disability to provide reasonable accommodation for that person's physical or mental impairment when the accommodation will enable that person to perform the work involved in the position occupied or sought.
(1) Accommodation is a modification or change in one or more of the aspects or characteristics of a position including but not limited to:
(a) Location and physical surroundings;
(b) Job duties;
(c) Equipment used;
(d) Hours, including but not limited to:
(A) Continuity (extended breaks, split shifts, medically essential rest periods, treatment periods, etc.); and
(B) Total time required (part-time, job-sharing).
(e) Method or procedure by which the work is performed.
(2) Accommodation is required where it does not impose an undue hardship on the employer. Whether an accommodation is reasonable will be determined by one or more of the following factors:
(a) The nature of the employer, including the total number in and the composition of the work force, the type of business or enterprise and the number and type of facilities;
(b) The cost to the employer of potential accommodation and whether there is a resource available to the employer which would limit or reduce the cost. Example: funding through a public or private agency assisting persons with disabilities;
(c) The effect or impact of the potential accommodation on production, the duties and/or responsibilities of other employees and the safety of the employee, coworkers and the general public. See OAR 839-006-0230;
(d) Medical approval of the accommodation; and
(e) Requirements of a valid collective bargaining agreement.
(3) A person with a disability who is an employee or candidate for employment must cooperate with an employer in the employer's efforts to reasonably accommodate the person's impairment. An employee with a disability may propose specific accommodations to the employer. The accommodation selected by the employer need not be one of the employee's suggestions, nor is the employer required to offer the accommodation most desirable to the employee.
(4) An employer is not required to provide reasonable accommodation to an employee with HIV unless and until the employee provides the employer with a copy of the test result confirming the diagnosis. See ORS 433.045(3).
(5) An employer may not use the provisions of this section as a subterfuge to avoid the employer's duty under ORS 659.425.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 659
Hist.: BL 2-1984, f. & ef. 1-31-84; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0250
Customer Preference; Co-Worker Preference
The attitude or preference of employers, managers, supervisors, co-workers, customers, clients, or the general public toward the person's perceived or actual impairment may not be considered by the employer in evaluating the person's ability to perform the work involved.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 659
Hist.: BL 2-1984, f. & ef. 1-31-84; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0255
Effect of Law
Where a law or regulation of this state or of the United States prevents the employment in a particular position of an person with a specified impairment or specified severity of impairment an employer is not required to employ the individual in that position if the individual has the described, medically verified impairment. Nothing in this rule shall be construed to permit denial of employment to such person in positions which are not subject to the law or regulations.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 659
Hist.: BL 2-1984, f. & ef. 1-31-84; BL 4-1996, f. & cert. ef. 3-12-96
839-006-0300
Discrimination Based on Disability
No public accommodation shall discriminate against an individual by any distinction or restriction because that individual is a disabled person.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 659
Hist.: BL 10-1996, f. & cert. ef. 12-4-96
839-006-0310
Removal of Physical Barriers
(1) A public accommodation must remove physical barriers to entering and using existing facilities when such removal is readily achievable.
(2) Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable factors to be considered include:
(a) The nature and cost of the action needed;
(b) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;
(c) The administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
(d) The overall financial resources of any parent corporation or entity.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 659
Hist.: BL 10-1996, f. & cert. ef. 12-4-96
839-006-0320
Provision of Auxiliary Aids/Significant Difficulty
A public accommodation must provide auxiliary aids and services when they are necessary to ensure access to goods, services or facilities offered by a public accommodation. Provision of auxiliary aids that would result in significant difficulty or expense or in a fundamental alteration in the nature of the goods or services is not required and is to be determined on a case by case basis.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 659
Hist.: BL 10-1996, f. & cert. ef. 12-4-96
839-006-0330
Readily Achievable/Significant Difficulty
(1) A public accommodation must remove physical and administrative barriers, if readily achievable, (as defined in OAR 839-006-0305) in order to make goods and services accessible.
(2) If barrier removal is not readily achievable, alternative steps must be taken to make goods and services accessible, such as providing goods and services at the door, sidewalk, or curb; providing home delivery; retrieving merchandise from inaccessible shelves or racks; relocating activities to accessible locations; relaxing of administrative policies.
(3) Extra charges shall not be imposed on individuals with disabilities to cover the costs of measures used as alternatives to barrier removal.
(4) Removal of physical or administrative barriers that would result in significant difficulty or expense or in a fundamental alteration in the nature of the goods or services is not required and is to be determined on a case by case basis.
Stat. Auth.: ORS Ch. 659
Stats. Implemented: ORS Ch. 659
Hist.: BL 10-1996, f. & cert. ef. 12-4-96
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