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

(1)

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.

(2)

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.

(3)

Notwithstanding subsection (1) of this section:

(a)

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

(A)

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.

(B)

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

(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 that is suitable prior to becoming medically stationary.

(E)

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.

(F)

Three years elapse from the date of injury.

(b)

The right to reinstatement under this section 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 perform less than six months’ work in a calendar year.

(C)

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

(D)

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.

(4)

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.150 to 659A.186) to 659A.186 (Exclusivity of provisions):

(a)

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

(b)

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

(5)

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]

Source: Section 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, https://www.­oregonlegislature.­gov/bills_laws/ors/ors659A.­html.

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)

659A.001
Definitions
659A.003
Purpose of ORS chapter 659A
659A.004
Short title
659A.006
Declaration of policy against unlawful discrimination
659A.009
Declaration of policy against discrimination in employment because of age
659A.012
State agencies to carry out policy against discrimination in employment
659A.015
Affirmative action reports to include information on contracts to minority businesses
659A.029
“Because of sex” defined for ORS 659A.030
659A.030
Discrimination because of race, color, religion, sex, sexual orientation, gender identity, national origin, marital status, age or expunged juvenile record prohibited
659A.033
Violation of ORS 659A.030 by denying religious leave or prohibiting certain religious observances or practices
659A.036
Short title
659A.040
Discrimination against worker applying for workers’ compensation benefits prohibited
659A.043
Reinstatement of injured worker to former position
659A.046
Reemployment of injured worker in other available and suitable work
659A.049
Rights of reinstatement and reemployment protected
659A.052
Reemployment rights of injured state workers
659A.060
Definitions for ORS 659A.060 to 659A.069
659A.063
State to continue group health benefits for injured worker and covered dependents
659A.066
Worker may continue benefits after employer’s obligation ends
659A.069
Discrimination against state worker applying for benefits under ORS 659A.060 to 659A.069 prohibited
659A.082
Discrimination against person for service in uniformed service prohibited
659A.086
Employment rights of members of organized militia when called into active state service
659A.088
Violation of ORS 659A.086 as unlawful employment practice
659A.089
Notification to Director of Veterans’ Affairs
659A.090
Definitions for ORS 659A.090 to 659A.099
659A.093
Employer required to provide leave
659A.096
Denial of leave, retaliation and discrimination prohibited
659A.099
Short title
659A.103
Policy
659A.104
Description of disability for purposes of ORS 659A.103 to 659A.145
659A.106
Employers to whom ORS 659A.112 to 659A.139 apply
659A.109
Discrimination against individual for using procedures in ORS 659A.103 to 659A.145 prohibited
659A.112
Employment discrimination
659A.115
Qualification for position
659A.118
Reasonable accommodation
659A.121
Undue hardship
659A.122
Definitions for ORS 659A.124, 659A.127 and 659A.130
659A.124
Illegal use of drugs
659A.127
Permitted employer action
659A.130
Conditions that do not constitute impairment
659A.133
Medical examinations and inquiries of job applicants
659A.136
Medical examinations and inquiries of employees
659A.139
Construction of ORS 659A.103 to 659A.145
659A.141
Damages recoverable for harm or theft of assistance animal
659A.142
Discrimination against individual with disability by employment agency, labor organization, place of public accommodation or state government prohibited
659A.143
Assistance animals
659A.144
Required accommodations in transient lodging
659A.145
Discrimination against individual with disability in real property transactions prohibited
659A.146
Reasonable accommodation
659A.147
Prohibited conduct
659A.148
Employers to whom provisions relating to reasonable accommodation apply
659A.150
Definitions for ORS 659A.150 to 659A.186
659A.153
Covered employers
659A.156
Eligible employees
659A.159
Purposes for which family leave may be taken
659A.162
Length of leave
659A.165
Notice to employer
659A.168
Medical verification and scheduling of treatment
659A.171
Job protection
659A.174
Use of paid leave
659A.177
Special rules for teachers
659A.180
Postings by employer
659A.183
Denying family leave to eligible employee prohibited
659A.186
Exclusivity of provisions
659A.190
Definitions for ORS 659A.190 to 659A.198
659A.192
Leave to attend criminal proceeding
659A.194
Denying leave to employee prohibited
659A.196
Notice to employer
659A.198
Use of paid leave
659A.199
Prohibited conduct by employer
659A.200
Definitions for ORS 659A.200 to 659A.224
659A.203
Prohibited conduct by public or nonprofit employer
659A.206
Effects of ORS 659A.200 to 659A.224 on employees
659A.209
Effect on public record disclosures
659A.210
Affirmative defense
659A.212
Policy on cooperation with law enforcement officials
659A.215
Remedies not exclusive
659A.218
Disclosure of employee’s name without consent prohibited
659A.219
Uniform standards and procedures manual for implementation of Whistleblower Law
659A.220
Bureau of Labor and Industries to collect and compile information relating to disclosures
659A.221
Uniform application to all public employers
659A.224
Short title
659A.228
Discrimination for reporting violation of election laws prohibited
659A.230
Discrimination for initiating or aiding in criminal or civil proceedings prohibited
659A.233
Discrimination for reporting certain violations or testifying at unemployment compensation hearing prohibited
659A.236
Discrimination for testifying before Legislative Assembly, committee or task force prohibited
659A.250
Definitions for ORS 659A.250 to 659A.262
659A.253
Restriction of access to employee housing owned or controlled by employer prohibited
659A.256
Regulations by employers concerning use and occupancy of employee housing
659A.259
Eviction from employee housing or discrimination against employee for reporting violations of ORS 659A.250 to 659A.262 prohibited
659A.262
Warrant on behalf of person entitled to access to housing
659A.270
Definitions for ORS 659A.270 to 659A.285
659A.272
Employer required to provide leave
659A.275
Undue hardship
659A.277
Denying leave to employee prohibited
659A.279
Required posting of summaries of statutes and rules
659A.280
Notice to employer
659A.283
Paid leave for public employees
659A.285
Use of paid leave
659A.290
Prohibited conduct by employer
659A.300
Requiring breathalyzer, polygraph, psychological stress or brain-wave test or genetic test prohibited
659A.303
Employer prohibited from obtaining, seeking to obtain or using genetic information
659A.306
Requiring employee to pay for medical examination as condition of continued employment prohibited
659A.309
Discrimination solely because of employment of another family member prohibited
659A.312
Leave of absence to donate bone marrow
659A.315
Restricting use of tobacco in nonworking hours prohibited
659A.318
Discrimination relating to academic degree in theology or religious occupations prohibited
659A.320
Discrimination based on information in credit history prohibited
659A.321
Seniority systems and benefit plans not unlawful employment practices
659A.330
Employee social media account privacy
659A.340
Interfering with employee’s good faith disclosure of information concerning unlawful conduct or certain violations prohibited
659A.343
Discrimination based on individual’s presentation of identification other than Real ID prohibited
659A.347
Discrimination related to possession of valid driver license
659A.350
Interns
659A.355
Discrimination based on wage inquiry or wage complaint
659A.357
Restricting salary history inquiries
659A.360
Restricting criminal conviction inquiries
659A.362
Enforcement
659A.370
Employer prohibited from entering into agreements that prevent employee from discussing certain unlawful conduct
659A.375
Employer policies relating to prevention of discrimination and sexual assault
659A.380
When severance or separation agreements are voidable by employer
659A.400
Place of public accommodation defined
659A.403
Discrimination in place of public accommodation prohibited
659A.406
Aiding or abetting certain discrimination prohibited
659A.409
Notice that discrimination will be made in place of public accommodation prohibited
659A.411
Definitions for ORS 659A.411 to 659A.415
659A.413
Denial of access prohibited
659A.415
Liability for damages
659A.417
Violation of ORS 659A.413
659A.421
Discrimination in selling, renting or leasing real property prohibited
659A.425
Violation based on facially neutral housing policy
659A.550
Discrimination because of employment status prohibited
659A.800
Elimination and prevention of discrimination by Bureau of Labor and Industries
659A.805
Rules for carrying out ORS chapter 659A
659A.810
Willful interference with administration of law and violation of orders of commissioner prohibited
659A.815
Advisory agencies and intergroup-relations councils
659A.820
Complaints
659A.825
Complaints filed by Attorney General or commissioner
659A.830
Authority of commissioner
659A.835
Investigation
659A.840
Settlement
659A.845
Formal charges
659A.850
Hearing
659A.855
Civil penalty for certain complaints filed by commissioner
659A.860
Settlement agreements and orders
659A.865
Retaliatory action prohibited
659A.870
Election of remedies
659A.875
Time limitations
659A.880
Ninety-day notice
659A.885
Civil action
659A.890
Civil action for violation of ORS 659A.865
659A.990
Penalties
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