| Posted At 08:49:07 05/17/2000
INJURED WORKER AND DISABILITY DISCRIMINATION
The Bureau of Labor of Industries is proposing changes to administrative rules covering injured worker and disabled person discrimination. The agency is doing this as part of a three-year periodic review, required by Oregon statute.
Public comment on the proposed rules will be accepted until April 30, 2000. After considering comment, the rules will become effective in late spring.
In addition to providing grammatical and syntax changes to improve the readability, the proposed changes will do the following:
Repeal the Oregon Safe Employment Act section (OAR 839-006-0000 to 839-006-0020) and move that content to a new Division 4. The new division containing Oregon Safe Employment Act rules will become active at the same time the Division 6 rules are adopted. The revised Division 6 will be divided into four sections: Injured Worker Discrimination (OAR 839-006-0100-0150), Disability Discrimination in Employment (OAR 839-006-0200 to 839-006-0265), Public Accommodation Discrimination Against Disabled Persons (OAR 839-006-0300 to 839-006-0335), and Disabled Persons in Real Property Transactions (OAR 839-006-0400 to 839-006-0430).
Clarify definitions relating to injured worker discrimination. A definition for "light-duty work" has been added, applying to the reemployment of an injured worker into a modified version of the worker's regular position. (OAR 839-006-0105)
Clarify the duties of a covered employer for the purposes of injured worker discrimination. As provided in ORS 659.410, an employer may not discriminate against employees or applicants because they have applied for Oregon Workers' Compensation benefits. Under ORS 659.415, an employer with 21 or more employees may not refuse an injured worker's reinstatement to the worker's regular position. Under ORS 659.420, an employer with six or more employees may not refuse an injured worker's reemployment to a suitable, light-duty position. (OAR 839-006-0115)
Add provisions for injured worker reemployment under ORS 659.420. If a suitable, light-duty position isn't available for an injured worker ready to return to modified work, the worker maintains reemployment rights for such a position for three years from the date of injury. An injured worker with permanent restrictions and released for light-duty work is entitled to remain in the offered position. (OAR 839-006-0135)
Clarify how an injured worker would decline an offer of "suitable employment" under ORS 659.415 and 659.420. For purposes of reinstatement or reemployment, if an employer offers an injured worker a position that the worker believes he or she is physically unable to carry out, either before or after accepting the position, the worker may decline that position. The employer, in turn, may require medical verification that the worker is unable to perform the position duties. (OAR 839-006-0145)
Add provisions for determining employment discrimination based on a person's disability. Prohibited discrimination includes, but is not limited to: (1) limiting disabled applicants or employees to adversely affect their opportunities; (2) participating in arrangements that discriminate against disabled applicants or employees; (3) establishing criteria that have the effect of discriminating against disabled applicants and employees; (4) denying employment to persons because of their association with disabled persons; and (5) failing to make reasonable accommodation for an applicant or employee. (OAR 839-006-0200)
Clarify definitions to the section on disabled worker discrimination. "Major life activity" has been expanded to include self-care, ambulation, communication, transportation, socialization, employment, reproduction and the ability to acquire, rent or maintain property. An impairment that "substantially limits" has been defined as one that renders a person unable to perform a major life activity, or to perform it as well as an average person can. (OAR 839-006-0205)
Adopt a rule outlining examples of reasonable accommodation of disabled workers. These include (1) making employee facilities accessible; (2) providing job restructuring, such as a modified work schedule; (3) acquiring or modifying equipment; (4) adjusting policies and training; and (4) providing aides such as interpreters. (OAR 839-006-0206)
Add definitions for public accommodation discrimination against disabled persons. "Disability" is added as a physical impairment that limits a major life activity. "Major life activity" and "substantially limits" are added and are the same as in disabled worker discrimination above. "Physical or mental impairment" is added and includes a physiological condition, cosmetic disfigurement, anatomical loss or mental or psychological disorder. "Public accommodation" is added as an entity offering the public advantages, privileges or facilities. It does not include an institution, club or place that is distinctly private. (OAR-839-006-0305)
Adopt a rule clarifying what constitutes direct threat in providing public accommodation to a disabled person. A public accommodation may refuse to permit a disabled person to use its services if it would pose a threat to the person or to others. A direct threat is assessed based on the duration of risk; the nature, likelihood and imminence of potential harm; and whether modifications can be made to mitigate the risk. (OAR 839-006-0335)
Add a section covering disabled persons in real property transactions. This section was repealed from OAR 839, Division 8, and incorporated into Division 6 (OAR 839-006-0400 to 839-006-0430). It also adds examples of discrimination in real property transactions, including: (1) refusing to sell lease or rent property; (2) expelling a purchaser, lessee or renter; (3) making distinctions and restrictions in real property transactions based on a person's disability; and (4) discouraging a transaction based on a person's disability.
To make comment on the proposed rules, please email to the address below. To mail by post, send your comments to Janet Whitfield, Rules Coordinator, Bureau of Labor and Industries, 800 NE Oregon Street, #32, Portland, OR 97232.