OAR 839-006-0135: Injured Workers: 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 disabled from performing the duties of the worker’s former regular employment 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 (see subsection (11) of this rule). (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 bona fide 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 or authorized nurse practitioner 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) A certificate of the worker’s attending physician or authorized nurse practitioner that the worker is able to perform described types of work shall be prima facie evidence of such ability. (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 or authorized nurse practitioner 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 or authorized nurse practitioner’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 or authorized nurse practitioner has released the injured worker to an available, suitable 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 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.