Unlawful Discrimination in Employment, Public Accommodations and Real Property Transactions

ORS 659A.043
Reinstatement of injured worker to former position

  • certificate evidencing ability to work
  • effect of collective bargaining agreement
  • termination of right to reinstatement
  • when reinstatement right terminates


A worker who has sustained a compensable injury shall be reinstated by the worker’s employer to the worker’s former position of employment upon demand for such reinstatement, if the position exists and is available and the worker is not disabled from performing the duties of such position. A worker’s former position is available even if that position has been filled by a replacement while the injured worker was absent. If the former position is not available, the worker shall be reinstated in any other existing position that is vacant and suitable. A certificate by the attending physician or a nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) that the physician or 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.


Such right of reemployment shall be subject to the provisions for seniority rights and other employment restrictions contained in a valid collective bargaining agreement between the employer and a representative of the employer’s employees.


Notwithstanding subsection (1) of this section:


The right to reinstatement to the worker’s former position under this section terminates when whichever of the following events first occurs:


A medical determination by the attending physician or, after an appeal of such determination to a medical arbiter or panel of medical arbiters pursuant to ORS chapter 656, has been made that the worker cannot return to the former position of employment.


The worker is eligible and participates in vocational assistance under ORS 656.340 (Vocational assistance procedure).


The worker accepts suitable employment with another employer after becoming medically stationary.


The worker refuses a bona fide offer from the employer of light duty or modified employment that is suitable prior to becoming medically stationary.


Seven days elapse from the date that the worker is notified by the insurer or self-insured employer by certified mail that the worker’s attending physician or a nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) has released the worker for employment unless the worker requests reinstatement within that time period.


Three years elapse from the date of injury.


The right to reinstatement under this section does not apply to:


A worker hired on a temporary basis as a replacement for an injured worker.


A seasonal worker employed to perform less than six months’ work in a calendar year.


A worker whose employment at the time of injury resulted from referral from a hiring hall operating pursuant to a collective bargaining agreement.


A worker whose employer employs 20 or fewer workers at the time of the worker’s injury and at the time of the worker’s demand for reinstatement.


Notwithstanding ORS 659A.165 (Notice to employer), a worker who refuses an offer of employment under subsection (3)(a)(D) of this section and who otherwise is entitled to family leave under ORS 659A.150 (Definitions for ORS 659A) to 659A.186 (Exclusivity of provisions):


Automatically commences a period of family leave under ORS 659A.150 (Definitions for ORS 659A) to 659A.186 (Exclusivity of provisions) upon refusing the offer of employment; and


Need not give additional written or oral notice to the employer that the employee is commencing a period of family leave.


Any violation of this section is an unlawful employment practice. [Formerly 659.415; 2003 c.811 §§21,22; 2005 c.22 §§469,470; 2007 c.365 §11; 2007 c.633 §§4,5]

Notes of Decisions

Where telephone company discharged compensably injured employe prior to her demand for reinstatement, she was entitled to seek injunctive relief under this section and was not limited to or required to exhaust remedies provided by collective bargaining agreement. Vaughn v. Pacific Northwest Bell Telephone, 289 Or 73, 611 P2d 281 (1980); Faris v. Gamble, Inc., 133 Or App 221, 889 P2d 1363 (1995)

Prevailing defendant in action pursuant to this section is entitled to award of attorney fees only if claim is brought in bad faith, is unreasonable or groundless or if plaintiff persists in litigating claim after it becomes evident claim is unreasonable or unfounded. Dobie v. Liberty Homes, 53 Or App 366, 632 P2d 449 (1981)

Where employer has hired another employe to fill position during absence of worker who exercised rights under Workers’ Compensation Law, employer must nevertheless, under this section, reinstate worker to former position of employment. Shaw v. Doyle Milling Co., 297 Or 251, 683 P2d 82 (1984)

Right to demand reinstatement survives interim discharge occurring before worker demands reinstatement and is refused by employers, where, under terms of statute, worker is entitled to assert statutory right, and unlawful employment practice claim for nonreinstatement accrues and time limitation begins to run when worker is able to return to work. Williams v. Waterway Terminals Co., 298 Or 506, 693 P2d 1290 (1984)

On remand, this section did not require employer, when employee returned to work after compensable injury, to reinstate employee to his former position, when position had been filled during employee’s absence. Janzen v. Sunriver Lands, Inc., 89 Or App 51, 747 P2d 378 (1987)

Legislature intended that reinstatement be required only where that position is existing and vacant. Knapp v. City of North Bend, 304 Or 34, 741 P2d 505 (1987)

In wrongful discharge action, discrimination on employer’s part can be established by proof of discriminatory motivation whether or not employer’s conduct violated this section. Palmer v. Central Oregon Irrigation Dist., 91 Or App 132, 754 P2d 601 (1988), Sup Ct review denied

Although defendants did not reinstate plaintiff to former position as deputy sheriff after she sustained compensable injury, they did not violate this section because evidence showed that plaintiff was not physically capable of performing duties of position. Blumhagen v. Clackamas County, 91 Or App 510, 756 P2d 650 (1988), Sup Ct review denied

Where Workers’ Compensation Board’s finding of permanent partial disability did not squarely establish plaintiff’s inability to perform his old job, trial court improperly granted employer’s motion for summary judgment on basis of preclusion in plaintiff’s action of reinstatement under this section. Chavez v. Boise Cascade Corporation, 307 Or 632, 772 P2d 409 (1989)

Where there was reasonable probability that employee was unable to perform work duties without endangering himself or others, employer did not commit unlawful employment practice by discharging him because of mental impairment. Welch v. Champion International Corp., 101 Or App 511, 791 P2d 152 (1990)

Reinstatement rights under this section do not arise if employer establishes that worker was discharged from worker’s pre-injury position for reasons unrelated to injury or to corresponding workers’ compensation claim. Lane County v. State of Oregon, 104 Or App 372, 801 P2d 870 (1990), Sup Ct review denied

Cause of action arises at time employer fails to offer reinstatement, not at time worker demands reinstatement. Barnes v. City of Portland, 120 Or App 24, 852 P2d 265 (1993), Sup Ct review denied

Right of employee to reinstatement following injury is independent of injury being found compensable for workers’ compensation benefits. Armstrong v. Rogue Federal Credit Union, 328 Or 154, 969 P2d 382 (1998)

For purpose of determining date on which right to reinstatement to worker’s former position terminates, date of injury is date on which worker suffered compensable injury that triggers right to reinstatement. Petock v. Asante, 237 Or App 113, 240 P3d 56 (2010), on reconsideration 238 Or App 711, 243 P3d 822 (2010), aff’d 351 Or 408, 268 P3d 579 (2011)

Violation of this statute constitutes reprehensible conduct for purpose of determining amount of punitive damages. Hamlin v. Hampton Lumber Mills, Inc., 349 Or 526, 246 P3d 1121 (2011)

Whether worsening of worker’s condition is compensable injury depends on whether trier of fact finds that condition is compensable within meaning of ORS 656.005. Petock v. Asante, 351 Or 408, 268 P3d 579 (2011)

Attorney General Opinions

Temporarily disabled worker’s right to reinstatement with full seniority more than year after disabling injury where collective bargaining agreement provides otherwise, (1980) Vol 40, p 483

Law Review Citations

27 WLR 106 (1991)


Last accessed
Mar. 11, 2023