Current through Register Vol. 63, No. 12, December 1, 2024
(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 not disabled from
performing 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; see subsection (8) of this rule), 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) A certificate by the
attending physician or authorized nurse practitioner that the attending
physician or authorized nurse practitioner approves the worker's return to the
worker's regular employment or other suitable employment shall be prima facie
evidence that the worker is able to perform such duties.
(a) In addition to an attending physician or
authorized nurse practitioner certificate, 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 or authorized nurse
practitioner 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 or authorized nurse practitioner'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 or authorized nurse
practitioner has released the injured worker for reinstatement to the former
position, but must be made no later than seven calendar days after receiving
certified mail notice from the insurer or self-insured employer that the
worker's attending physician or authorized nurse practitioner 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
