US Laws, Codes, Statutes & Cases

Chapter 659A — Unlawful Discrimination in Employment, Public Accommodations and Real Property Transactions; Administrative and Civil Enforcement

 

2005 EDITION

 

 

UNLAWFUL DISCRIMINATION

 

LABOR AND EMPLOYMENT

 

DEFINITIONS

 

659A.001  Definitions

 

PURPOSE AND POLICY

 

659A.003  Purpose of ORS chapter 659A

 

659A.006  Declaration of policy against discrimination; opportunity to obtain employment without discrimination recognized as a civil right; exception of religious group

 

659A.009  Declaration of policy against discrimination in employment because of age

 

659A.012  State agencies to carry out policy against discrimination in employment; evaluation of supervisors; affirmative action reports

 

659A.015  Affirmative action reports to include information on contracts to minority businesses

 

UNLAWFUL EMPLOYMENT DISCRIMINATION BECAUSE OF RACE, RELIGION,

COLOR, SEX, NATIONAL ORIGIN, MARITAL STATUS OR AGE

 

659A.029  “Because of sex” defined for ORS 659A.030

 

659A.030  Discrimination because of race, religion, color, sex, national origin, marital status or age prohibited

 

UNLAWFUL EMPLOYMENT DISCRIMINATION AGAINST INJURED WORKERS

 

(Unlawful Discrimination Against Injured Workers)

 

659A.040  Discrimination against worker applying for workers’ compensation benefits prohibited

 

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

 

659A.046  Reemployment of injured worker in other available and suitable work; termination of right to reemployment; effect of collective bargaining agreement

 

659A.049  Rights of reinstatement and reemployment protected

 

659A.052  Reemployment rights of injured state workers; rules

 

(Benefits for Injured State Workers and Covered Dependents)

 

659A.060  Definitions for ORS 659A.060 to 659A.069

 

659A.063  State to continue group health benefits for injured worker and covered dependents; when ended

 

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

 

UNLAWFUL DISCRIMINATION AGAINST DISABLED PERSONS

 

659A.100  Definitions for ORS 659A.100 to 659A.145

 

659A.103  Policy

 

659A.106  Employers to whom ORS 659A.100 to 659A.145 apply

 

659A.109  Discrimination against worker for using procedures in ORS 659A.100 to 659A.145 prohibited

 

659A.112  Discrimination against disabled person in employment prohibited

 

659A.115  Qualification for position

 

659A.118  Reasonable accommodation

 

659A.121  Undue hardship

 

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.112 to 659A.139

 

659A.142  Discrimination against disabled persons by employment agency, labor organization, place of public accommodation or state government prohibited; mental disorder treatment not evidence of inability to manage property

 

659A.145  Discrimination against disabled persons in real property transactions prohibited; advertising discriminatory preference prohibited; when necessary modification to be allowed; assisting discriminatory practices prohibited

 

FAMILY LEAVE

 

659A.150  Definitions for ORS 659A.150 to 659A.186

 

659A.153  Covered employers

 

659A.156  Eligible employees; exceptions

 

659A.159  Purposes for which family leave may be taken

 

659A.162  Length of leave; conditions; rules

 

659A.165  Notice to employer

 

659A.168  Medical verification and scheduling of treatment

 

659A.171  Job protection; benefits

 

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; construction

 

LEAVE TO ATTEND CRIMINAL PROCEEDING

 

659A.190  Definitions for ORS 659A.190 to 659A.198

 

659A.192  Leave to attend criminal proceeding; undue hardship on employer; scheduling criminal proceeding

 

659A.194  Denying leave to employee prohibited; civil action

 

659A.196  Notice to employer; records confidential

 

659A.198  Use of paid leave

 

WHISTLEBLOWING

 

(Disclosures by Public Employees)

 

659A.200  Definitions for ORS 659A.200 to 659A.224

 

659A.203  Prohibited conduct by public employer

 

659A.206  Effect on public employer’s authority over employees

 

659A.209  Effect on public record disclosures

 

659A.212  Policy on cooperation with law enforcement officials; duty to report person subject to warrant for arrest

 

659A.215  Remedies not exclusive

 

659A.218  Disclosure of employee’s name without consent prohibited

 

659A.221  Uniform application to all public employers; optional procedure for disclosures; rules

 

659A.224  Short title

 

(Initiating or Aiding Administrative, Criminal or Civil Proceeding)

 

659A.230  Discrimination for initiating or aiding in criminal or civil proceedings prohibited; remedies not exclusive

 

659A.233  Discrimination for reporting certain violations or testifying at unemployment compensation hearing prohibited

 

(Legislative Testimony)

 

659A.236  Discrimination for testifying before Legislative Assembly, committee or task force prohibited

 

UNLAWFUL EMPLOYMENT DISCRIMINATION RELATING TO EMPLOYEE HOUSING

 

659A.250  Definitions for ORS 659A.250 to 659A.262

 

659A.253  Restriction of access to employee housing owned or controlled by employer prohibited; telephone accessibility

 

659A.256  Regulations by employers concerning use and occupancy of employee housing; requirements; notice

 

659A.259  Eviction from employee housing or discrimination against employee for reporting violations of ORS 659A.250 to 659A.262 prohibited; enforcement

 

659A.262  Warrant on behalf of person entitled to access to housing; vacation of warrant; rules

 

MISCELLANEOUS UNLAWFUL EMPLOYMENT DISCRIMINATION

 

(Prohibited Testing)

 

659A.300  Requiring breathalyzer, polygraph, psychological stress or brain-wave test or genetic test prohibited; exceptions

 

659A.303  Employer prohibited from obtaining, seeking to obtain or using genetic information; remedies

 

659A.306  Requiring employee to pay for medical examination as condition of continued employment prohibited; exceptions

 

(Miscellaneous Provisions)

 

659A.309  Discrimination solely because of employment of another family member prohibited; exceptions

 

659A.312  Leave of absence to donate bone marrow; verification by employer

 

659A.315  Restricting use of tobacco in nonworking hours prohibited; exceptions

 

659A.318  Discrimination relating to academic degree in theology or religious occupations prohibited

 

659A.321  Seniority systems and benefit plans not unlawful employment practices

 

UNLAWFUL DISCRIMINATION IN PUBLIC ACCOMMODATIONS

 

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; age exceptions

 

UNLAWFUL DISCRIMINATION IN REAL PROPERTY TRANSACTIONS

 

659A.420  “Purchaser” defined for ORS 659A.421

 

659A.421  Discrimination in selling, renting or leasing real property prohibited

 

659A.424  Violation of ORS 659A.145 or 659A.421

 

ADMINISTRATIVE ACTIONS FOR UNLAWFUL DISCRIMINATION

 

(Enforcement Powers of Bureau of Labor and Industries)

 

659A.800  Elimination and prevention of discrimination by Bureau of Labor and Industries; subpoenas

 

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

 

(Complaint, Investigation and Hearing Procedures)

 

659A.820  Complaints

 

659A.825  Complaints filed by Attorney General or commissioner; temporary cease and desist orders in certain cases

 

659A.830  Authority of commissioner

 

659A.835  Investigation; finding of substantial evidence

 

659A.840  Settlement

 

659A.845  Formal charges

 

659A.850  Hearing; orders

 

659A.855  Civil penalty for certain complaints filed by commissioner

 

659A.860  Settlement agreements and orders

 

659A.865  Retaliatory action prohibited

 

CIVIL ACTIONS FOR UNLAWFUL DISCRIMINATION

 

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

 

PENALTIES

 

659A.990  Penalties

 

DEFINITIONS

 

      659A.001 Definitions. As used in this chapter:

      (1) “Bureau” means the Bureau of Labor and Industries.

      (2) “Commissioner” means the Commissioner of the Bureau of Labor and Industries.

      (3) “Employee” does not include any individual employed by the individual’s parents, spouse or child or in the domestic service of any person.

      (4) “Employer” means any person who in this state, directly or through an agent, engages or uses the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed.

      (5) “Employment agency” includes any person undertaking to procure employees or opportunities to work.

      (6)(a) “Familial status” means the relationship between one or more individuals who have not attained 18 years of age and who are domiciled with:

      (A) A parent or another person having legal custody of the individual; or

      (B) The designee of the parent or other person having such custody, with the written permission of the parent or other person.

      (b) “Familial status” includes any individual, regardless of age or domicile, who is pregnant or is in the process of securing legal custody of an individual who has not attained 18 years of age.

      (7) “Labor organization” includes any organization which is constituted for the purpose, in whole or in part, of collective bargaining or in dealing with employers concerning grievances, terms or conditions of employment or of other mutual aid or protection in connection with employees.

      (8) “National origin” includes ancestry.

      (9) “Person” includes one or more individuals, partnerships, associations, labor organizations, limited liability companies, joint stock companies, corporations, legal representatives, trustees, trustees in bankruptcy or receivers. “Person” also includes a public body as defined in ORS 30.260.

      (10) “Respondent” means any person against whom a complaint or charge of an unlawful practice is filed with the commissioner or whose name has been added to such complaint or charge pursuant to ORS 659A.835.

      (11) “Unlawful employment practice” means a practice specifically denominated as an unlawful employment practice in this chapter. “Unlawful employment practice” includes a practice that is specifically denominated in another statute of this state as an unlawful employment practice and that is specifically made subject to enforcement under this chapter.

      (12) “Unlawful practice” means any unlawful employment practice or any other practice specifically denominated as an unlawful practice in this chapter. “Unlawful practice” includes a practice that is specifically denominated in another statute of this state as an unlawful practice and that is specifically made subject to enforcement under this chapter, or a practice that violates a rule adopted by the commissioner for the enforcement of the provisions of this chapter. [2001 c.621 §1]

 

PURPOSE AND POLICY

 

      659A.003 Purpose of ORS chapter 659A. The purpose of this chapter is to encourage the fullest utilization of the available workforce by removing arbitrary standards of race, religion, color, sex, marital status, national origin or age as a barrier to employment of the inhabitants of this state, and to ensure the human dignity of all people within this state and protect their health, safety and morals from the consequences of intergroup hostility, tensions and practices of discrimination of any kind based on race, religion, color, sex, marital status or national origin. To accomplish this purpose, the Legislative Assembly intends by this chapter to provide:

      (1) A program of public education calculated to eliminate attitudes upon which practices of discrimination because of race, religion, color, sex, marital status or national origin are based.

      (2) An adequate remedy for persons aggrieved by certain acts of discrimination because of race, religion, color, sex, marital status or national origin or unreasonable acts of discrimination in employment based upon age.

      (3) An adequate administrative machinery for the orderly resolution of complaints of discrimination through a procedure involving investigation, conference, conciliation and persuasion, to encourage the use in good faith of such machinery by all parties to a complaint of discrimination and to discourage unilateral action that makes moot the outcome of final administrative or judicial determination on the merits of such a complaint. [Formerly 659.022; 2005 c.22 §467]

 

      659A.006 Declaration of policy against discrimination; opportunity to obtain employment without discrimination recognized as a civil right; exception of religious group. (1) It is declared to be the public policy of Oregon that practices of discrimination against any of its inhabitants because of race, religion, color, sex, marital status, national origin, age or disability are a matter of state concern and that such discrimination threatens not only the rights and privileges of its inhabitants but menaces the institutions and foundation of a free democratic state.

      (2) The opportunity to obtain employment without discrimination because of race, religion, color, sex, marital status, national origin, age or disability hereby is recognized as and declared to be a civil right. However, this section shall not be construed to prevent a bona fide church or sectarian religious institution, including but not limited to a school, hospital or church camp, from preferring an employee or applicant for employment of one religious sect or persuasion over another when:

      (a) That religious sect or persuasion to which the employee or applicant belongs is the same as that of such church or institution;

      (b) In the opinion of such bona fide church or sectarian religious institution, such a preference will best serve the purposes of such church or institution; and

      (c) The employment involved is closely connected with or related to the primary purposes of the church or institution and is not connected with a commercial or business activity which has no necessary relationship to the church or institution, or to its primary purposes. [Formerly 659.020]

 

      659A.009 Declaration of policy against discrimination in employment because of age. It is declared to be the public policy of Oregon that the available workforce should be utilized to the fullest extent possible. To this end, the abilities of an individual, and not any arbitrary standards that discriminate against an individual solely because of age, should be the measure of the individual’s fitness and qualification for employment. [Formerly 659.015; 2005 c.22 §468]

 

      659A.012 State agencies to carry out policy against discrimination in employment; evaluation of supervisors; affirmative action reports. (1) To achieve the public policy of the State of Oregon for persons in the state to attain employment and advancement without discrimination because of race, religion, color, sex, marital status, national origin, disability or age, every state agency shall be required to include in the evaluation of all management personnel the manager’s or supervisor’s effectiveness in achieving affirmative action objectives as a key consideration of the manager’s or supervisor’s performance.

      (2) To achieve the public policy of the State of Oregon for persons in the state to attain employment and advancement without discrimination because of race, religion, color, sex, marital status, national origin, age or disability, every state agency shall be required to present the affirmative action objectives and performance of that agency of the current biennium and those for the following biennium to the Governor of the State of Oregon and to the Legislative Assembly. These plans shall be reviewed as part of the budget review process. [Formerly 659.025]

 

      659A.015 Affirmative action reports to include information on contracts to minority businesses. In carrying out the policy of affirmative action, every state agency shall include in its affirmative action reports under ORS 659A.012 information concerning its awards of construction, service and personal service contracts awarded to minority businesses. [Formerly 659.027]

 

UNLAWFUL EMPLOYMENT DISCRIMINATION BECAUSE OF RACE, RELIGION, COLOR, SEX, NATIONAL ORIGIN, MARITAL STATUS OR AGE

 

      659A.029 “Because of sex” defined for ORS 659A.030. For purposes of ORS 659A.030, the phrase “because of sex” includes, but is not limited to, because of pregnancy, childbirth and related medical conditions or occurrences. Women affected by pregnancy, childbirth or related medical conditions or occurrences shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work by reason of physical condition, and nothing in this section shall be interpreted to permit otherwise. [Formerly 659.029]

 

      659A.030 Discrimination because of race, religion, color, sex, national origin, marital status or age prohibited. (1) It is an unlawful employment practice:

      (a) For an employer, because of an individual’s race, religion, color, sex, national origin, marital status or age if the individual is 18 years of age or older or because of the race, religion, color, sex, national origin, marital status or age of any other person with whom the individual associates, or because of a juvenile record, that has been expunged pursuant to ORS 419A.260 and 419A.262, of any individual, to refuse to hire or employ or to bar or discharge from employment such individual. However, discrimination is not an unlawful employment practice if such discrimination results from a bona fide occupational requirement reasonably necessary to the normal operation of the employer’s business.

      (b) For an employer, because of an individual’s race, religion, color, sex, national origin, marital status or age if the individual is 18 years of age or older, or because of the race, religion, color, sex, national origin, marital status or age of any other person with whom the individual associates, or because of a juvenile record, that has been expunged pursuant to ORS 419A.260 and 419A.262, of any individual, to discriminate against such individual in compensation or in terms, conditions or privileges of employment.

      (c) For a labor organization, because of an individual’s race, religion, color, sex, national origin, marital status or age if the individual is 18 years of age or older or because of a juvenile record, that has been expunged pursuant to ORS 419A.260 and 419A.262, of any individual to exclude or to expel from its membership such individual or to discriminate in any way against any such individual or any other person.

      (d) For any employer or employment agency to print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment which expresses directly or indirectly any limitation, specification or discrimination as to an individual’s race, religion, color, sex, national origin, marital status or age if the individual is 18 years of age or older or on the basis of an expunged juvenile record, or any intent to make any such limitation, specification or discrimination, unless based upon a bona fide occupational qualification. But identifying employees according to race, religion, color, sex, national origin, marital status, or age does not violate this section unless the Commissioner of the Bureau of Labor and Industries, after a hearing conducted pursuant to ORS 659A.805, determines that such a designation expresses an intent to limit, specify or discriminate on the basis of race, religion, color, sex, national origin, marital status or age.

      (e) For an employment agency to classify or refer for employment, or to fail or refuse to refer for employment, or otherwise to discriminate against any individual:

      (A) On the basis of the individual’s race, color, national origin, sex, religion, marital status or age, if the individual is 18 years of age or older;

      (B) Because of the race, color, national origin, sex, religion, marital status or age of any other person with whom the individual associates; or

      (C) Because of a juvenile record, that has been expunged pursuant to ORS 419A.260 and 419A.262.

 

However, it is not an unlawful employment practice for an employment agency to classify or refer for employment any individual where such classification or referral results from a bona fide occupational requirement reasonably necessary to the normal operation of the employer’s business.

      (f) For any person to discharge, expel or otherwise discriminate against any other person because that other person has opposed any unlawful practice, or because that other person has filed a complaint, testified or assisted in any proceeding under this chapter or has attempted to do so.

      (g) For any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.

      (2) The provisions of this section apply to an apprentice under ORS 660.002 to 660.210, but the selection of an apprentice on the basis of the ability to complete the required apprenticeship training before attaining the age of 70 years is not an unlawful employment practice. The commissioner shall administer this section with respect to apprentices under ORS 660.002 to 660.210 equally with regard to all employees and labor organizations.

      (3) The compulsory retirement of employees required by law at any age is not an unlawful employment practice if lawful under federal law.

      (4)(a) It is not an unlawful employment practice for an employer or labor organization to provide or make financial provision for child care services of a custodial or other nature to its employees or members who are responsible for a minor child.

      (b) As used in this subsection, “responsible for a minor child” means having custody or legal guardianship of a minor child or acting in loco parentis to the child. [Formerly 659.030]

 

UNLAWFUL EMPLOYMENT DISCRIMINATION AGAINST INJURED WORKERS

 

(Unlawful Discrimination Against Injured Workers)

 

      659A.040 Discrimination against worker applying for workers’ compensation benefits prohibited. (1) It is an unlawful employment practice for an employer to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in ORS chapter 656 or has given testimony under the provisions of those laws.

      (2) This section applies only to employers who employ six or more persons. [2001 c.621 §32]

 

      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 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.

      (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 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) Any violation of this section is an unlawful employment practice. [Formerly 659.415; 2003 c.811 §21; 2005 c.22 §469]

 

      Note: The amendments to 659A.043 by section 22, chapter 811, Oregon Laws 2003, become operative January 2, 2008. See section 32, chapter 811, Oregon Laws 2003. The text that is operative on and after January 2, 2008, including amendments by section 470, chapter 22, Oregon Laws 2005, is set forth for the user’s convenience.

      659A.043. (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 that the physician 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.

      (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 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) Any violation of this section is an unlawful employment practice.

 

      659A.046 Reemployment of injured worker in other available and suitable work; termination of right to reemployment; effect of collective bargaining agreement. (1) A worker who has sustained a compensable injury and is disabled from performing the duties of the worker’s former regular employment shall, upon demand, be reemployed by the worker’s employer at employment which is available and suitable.

      (2) A certificate of the worker’s attending physician or a nurse practitioner authorized to provide compensable medical services under ORS 656.245 that the worker is able to perform described types of work shall be prima facie evidence of such ability.

      (3) Notwithstanding subsection (1) of this section, the right to reemployment under this section terminates when whichever of the following events first occurs:

      (a) The worker cannot return to reemployment at any position with the employer either by determination of the attending physician or a nurse practitioner authorized to provide compensable medical services under ORS 656.245 or upon appeal of that determination, by determination of a medical arbiter or panel of medical arbiters pursuant to ORS chapter 656.

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

      (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 has released the worker for reemployment unless the worker requests reemployment within that time period.

      (f) Three years elapse from the date of injury.

      (4) 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.

      (5) Any violation of this section is an unlawful employment practice.

      (6) This section applies only to employers who employ six or more persons. [Formerly 659.420; 2003 c.811 §23]

 

      Note: The amendments to 659A.046 by section 24, chapter 811, Oregon Laws 2003, become operative January 2, 2008. See section 32, chapter 811, Oregon Laws 2003. The text that is operative on and after January 2, 2008, is set forth for the user’s convenience.

      659A.046. (1) A worker who has sustained a compensable injury and is disabled from performing the duties of the worker’s former regular employment shall, upon demand, be reemployed by the worker’s employer at employment which is available and suitable.

      (2) A certificate of the worker’s attending physician that the worker is able to perform described types of work shall be prima facie evidence of such ability.

      (3) Notwithstanding subsection (1) of this section, the right to reemployment under this section terminates when whichever of the following events first occurs:

      (a) The worker cannot return to reemployment at any position with the employer either by determination of the attending physician or upon appeal of that determination, by determination of a medical arbiter or panel of medical arbiters pursuant to ORS chapter 656.

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

      (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 has released the worker for reemployment unless the worker requests reemployment within that time period.

      (f) Three years elapse from the date of injury.

      (4) 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.

      (5) Any violation of this section is an unlawful employment practice.

      (6) This section applies only to employers who employ six or more persons.

 

      659A.049 Rights of reinstatement and reemployment protected. The rights of reinstatement afforded by ORS 659A.043 and 659A.046 shall not be forfeited if the worker refuses to return to the worker’s regular or other offered employment without release to such employment by the worker’s attending physician or a nurse practitioner authorized to provide compensable medical services under ORS 656.245. [Formerly 659.417; 2003 c.811 §25]

 

      Note: The amendments to 659A.049 by section 26, chapter 811, Oregon Laws 2003, become operative January 2, 2008. See section 32, chapter 811, Oregon Laws 2003. The text that is operative on and after January 2, 2008, is set forth for the user’s convenience.

      659A.049. The rights of reinstatement afforded by ORS 659A.043 and 659A.046 shall not be forfeited if the worker refuses to return to the worker’s regular or other offered employment without release to such employment by the worker’s attending physician.

 

      659A.052 Reemployment rights of injured state workers; rules. (1) For the purpose of administration of ORS 659A.043 and 659A.046:

      (a) An injured worker employed at the time of injury by any agency in the legislative department of the government of this state shall have the right to reinstatement or reemployment at any available and suitable position in any agency in the legislative department.

      (b) An injured worker employed at the time of injury by any agency in the judicial department of the government of this state shall have the right to reinstatement or reemployment at any available and suitable position in any agency in the judicial department.

      (c) An injured worker employed at the time of injury by any agency of the executive or administrative department of the government of this state shall have the right to reinstatement or reemployment at any available and suitable position in any agency of the executive or administrative department.

      (2) Notwithstanding ORS 659A.043 and 659A.046, an injured worker referred to in subsection (1) of this section has preference for entry level and light duty assignments with agencies described in subsection (1) of this section. In accordance with the provisions of ORS chapter 183, any agency referred to in subsection (1) of this section may adopt rules to define entry level and light duty assignments. However, the rulemaking power for all agencies referred to in subsection (1)(c) of this section shall be exercised by the Administrator of the Personnel Division.

      (3) In accordance with any applicable provision of ORS chapter 240, the Administrator of the Personnel Division may compel compliance with this section and ORS 659A.043 and 659A.046 by any agency referred to in subsection (1)(c) of this section. [Formerly 659.412; 2005 c.22 §471]

 

(Benefits for Injured State Workers and Covered Dependents)

 

      659A.060 Definitions for ORS 659A.060 to 659A.069. As used in ORS 659A.060 to 659A.069, unless the context requires otherwise:

      (1) “Group health benefits” means that form of health benefits provided by the State of Oregon to cover groups of employees, with or without one or more members of their families or one or more dependents. The group health benefits which are continued under ORS 659A.060 to 659A.069 shall be the same as the worker and the worker’s dependents had immediately prior to the injury or illness, and includes, but is not limited to, medical care, dental care, vision care or prescription drug coverage, or any combination thereof, that the worker had elected prior to the injury or illness. If the plan elected prior to the injury or illness is no longer available, the worker shall have the same plan selection rights as do active employees.

      (2) “Worker” means any state employee who has filed a workers’ compensation claim pursuant to ORS chapter 656. [Formerly 659.450]

 

      659A.063 State to continue group health benefits for injured worker and covered dependents; when ended. (1) The State of Oregon shall cause group health benefits to continue in effect with respect to that worker and any covered dependents or family members by timely payment of the premium that includes the contribution due from the state under the applicable benefit plan, subject to any premium contribution due from the worker that the worker paid before the occurrence of the injury or illness. If the premium increases or decreases, the State of Oregon and worker contributions shall be adjusted to remain consistent with similarly situated active employees. The State of Oregon shall continue the worker’s health benefits in effect until whichever of the following events occurs first:

      (a) The worker’s attending physician or a nurse practitioner authorized to provide compensable medical services under ORS 656.245 has determined the worker to be medically stationary and a notice of closure has been entered;

      (b) The worker returns to work for the State of Oregon, after a period of continued coverage under this section, and satisfies any probationary or minimum work requirement to be eligible for group health benefits;

      (c) The worker takes full or part-time employment with another employer that is comparable in terms of the number of hours per week the worker was employed with the State of Oregon or the worker retires;

      (d) Twelve months have elapsed since the date the State of Oregon received notice that the worker filed a workers’ compensation claim pursuant to ORS chapter 656;

      (e) The claim is denied and the claimant fails to appeal within the time provided by ORS 656.319 or the Workers’ Compensation Board or a workers’ compensation hearings referee or a court issues an order finding the claim is not compensable;

      (f) The worker does not pay the required premium or portion thereof in a timely manner in accordance with the terms and conditions under this section;

      (g) The worker elects to discontinue coverage under this section and notifies the State of Oregon in writing of this election;

      (h) The worker’s attending physician or a nurse practitioner authorized to provide compensable medical services under ORS 656.245 has released the worker to modified or regular work, the work has been offered to the worker and the worker refuses to return to work; or

      (i) The worker has been terminated from employment for reasons unrelated to the workers’ compensation claim.

      (2) If the workers’ compensation claim of a worker for whom health benefits are provided pursuant to subsection (1) of this section is denied and the worker does not appeal or the worker appeals and does not prevail, the State of Oregon may recover from the worker the amount of the premiums plus interest at the rate authorized by ORS 82.010. The State of Oregon may recover the payments through a payroll deduction not to exceed 10 percent of gross pay for each pay period.

      (3) The State of Oregon shall notify the worker of the provisions of ORS 659A.060 to 659A.069, and of the remedies available for breaches of ORS 659A.060 to 659A.069, within a reasonable time after the State of Oregon receives notice that the worker will be absent from work as a result of an injury or illness for which a workers’ compensation claim has been filed pursuant to ORS chapter 656. The notice from the State of Oregon shall include the terms and conditions of the continuation of health benefits and what events will terminate the coverage.

      (4) If the worker fails to make timely payment of any premium contribution owing, the State of Oregon shall notify the worker of impending cancellation of the health benefits and provide the worker with 30 days to pay the required premium prior to canceling the policy.

      (5) It is an unlawful employment practice for the State of Oregon to discriminate against a worker, as defined in ORS 659A.060, by terminating the worker’s group health benefits while that worker is absent from the place of employment as a result of an injury or illness for which a workers’ compensation claim has been filed pursuant to ORS chapter 656, except as provided for in this section. [Formerly 659.455; 2003 c.811 §27]

 

      Note: The amendments to 659A.063 by section 28, chapter 811, Oregon Laws 2003, become operative January 2, 2008. See section 32, chapter 811, Oregon Laws 2003. The text that is operative on and after January 2, 2008, is set forth for the user’s convenience.

      659A.063. (1) The State of Oregon shall cause group health benefits to continue in effect with respect to that worker and any covered dependents or family members by timely payment of the premium that includes the contribution due from the state under the applicable benefit plan, subject to any premium contribution due from the worker that the worker paid before the occurrence of the injury or illness. If the premium increases or decreases, the State of Oregon and worker contributions shall be adjusted to remain consistent with similarly situated active employees. The State of Oregon shall continue the worker’s health benefits in effect until whichever of the following events occurs first:

      (a) The worker’s attending physician has determined the worker to be medically stationary and a notice of closure has been entered;

      (b) The worker returns to work for the State of Oregon, after a period of continued coverage under this section, and satisfies any probationary or minimum work requirement to be eligible for group health benefits;

      (c) The worker takes full or part-time employment with another employer that is comparable in terms of the number of hours per week the worker was employed with the State of Oregon or the worker retires;

      (d) Twelve months have elapsed since the date the State of Oregon received notice that the worker filed a workers’ compensation claim pursuant to ORS chapter 656;

      (e) The claim is denied and the claimant fails to appeal within the time provided by ORS 656.319 or the Workers’ Compensation Board or a workers’ compensation hearings referee or a court issues an order finding the claim is not compensable;

      (f) The worker does not pay the required premium or portion thereof in a timely manner in accordance with the terms and conditions under this section;

      (g) The worker elects to discontinue coverage under this section and notifies the State of Oregon in writing of this election;

      (h) The worker’s attending physician has released the worker to modified or regular work, the work has been offered to the worker and the worker refuses to return to work; or

      (i) The worker has been terminated from employment for reasons unrelated to the workers’ compensation claim.

      (2) If the workers’ compensation claim of a worker for whom health benefits are provided pursuant to subsection (1) of this section is denied and the worker does not appeal or the worker appeals and does not prevail, the State of Oregon may recover from the worker the amount of the premiums plus interest at the rate authorized by ORS 82.010. The State of Oregon may recover the payments through a payroll deduction not to exceed 10 percent of gross pay for each pay period.

      (3) The State of Oregon shall notify the worker of the provisions of ORS 659A.060 to 659A.069, and of the remedies available for breaches of ORS 659A.060 to 659A.069, within a reasonable time after the State of Oregon receives notice that the worker will be absent from work as a result of an injury or illness for which a workers’ compensation claim has been filed pursuant to ORS chapter 656. The notice from the State of Oregon shall include the terms and conditions of the continuation of health benefits and what events will terminate the coverage.

      (4) If the worker fails to make timely payment of any premium contribution owing, the State of Oregon shall notify the worker of impending cancellation of the health benefits and provide the worker with 30 days to pay the required premium prior to canceling the policy.

      (5) It is an unlawful employment practice for the State of Oregon to discriminate against a worker, as defined in ORS 659A.060, by terminating the worker’s group health benefits while that worker is absent from the place of employment as a result of an injury or illness for which a workers’ compensation claim has been filed pursuant to ORS chapter 656, except as provided for in this section.

 

      659A.066 Worker may continue benefits after employer’s obligation ends. If the State of Oregon’s obligation to continue paying premiums for health benefits under ORS 659A.063 expires or terminates, the worker may continue coverage by paying the entire premium pursuant to ORS 743.530. [Formerly 659.460]

 

      659A.069 Discrimination against state worker applying for benefits under ORS 659A.060 to 659A.069 prohibited. It is an unlawful employment practice for the State of Oregon to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in ORS 659A.060 to 659A.069 or has given testimony under the provisions of those laws. [2001 c.621 §34]

 

UNLAWFUL DISCRIMINATION AGAINST DISABLED PERSONS

 

      659A.100 Definitions for ORS 659A.100 to 659A.145. (1) As used in ORS 659A.100 to 659A.145, unless the context requires otherwise:

      (a) “Disabled person” means an individual who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment or is regarded as having such an impairment.

      (b) “Drug” means a controlled substance, as classified in schedules I through V of section 202 of the Controlled Substances Act, 21 U.S.C.A. 812, as amended, and as modified under ORS 475.035.

      (c) “Illegal use of drugs” means any use of drugs, the possession or distribution of which is unlawful under state law or under the Controlled Substances Act, 21 U.S.C.A. 812, as amended, but does not include the use of a drug taken under supervision of a licensed health care professional, or other uses authorized under the Controlled Substances Act or under other provisions of state or federal law.

      (d) “State government” has the meaning given that term in ORS 174.111.

      (2) As used in subsection (1) of this section:

      (a) “Major life activity” includes but is not limited to self-care, ambulation, communication, transportation, education, socialization, employment and ability to acquire, rent or maintain property.

      (b) “Has a record of such an impairment” means that the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

      (c) “Is regarded as having such an impairment” means that the individual:

      (A) Has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer or supervisor as having such a limitation;

      (B) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitude of others toward such impairment; or

      (C) Has none of the impairments described in subparagraph (A) or (B) of this paragraph, but is treated by an employer or supervisor as having a mental or physical impairment that substantially limits one or more major life activities.

      (d) “Substantially limits” means:

      (A) The impairment renders the individual unable to perform a major life activity that the average person in the general population can perform; or

      (B) The impairment significantly restricts the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform the same major life activity. [Formerly 659.400; 2003 c.254 §1]

 

      659A.103 Policy. (1) It is declared to be the public policy of Oregon to guarantee disabled persons the fullest possible participation in the social and economic life of the state, to engage in remunerative employment, to use and enjoy places of public accommodation, resort or amusement, to participate in and receive the benefits of the services, programs and activities of state government and to secure housing accommodations of their choice, without discrimination.

      (2) The right to otherwise lawful employment without discrimination because of disability where the reasonable demands of the position do not require such a distinction, and the right to use and enjoy places of public accommodation, resort or amusement, to participate in and receive the benefits of the services, programs and activities of state government and to purchase or rent property without discrimination because of disability, are hereby recognized and declared to be the rights of all the people of this state. It is hereby declared to be the policy of the State of Oregon to protect these rights and ORS 659A.100 to 659A.145 shall be construed to effectuate such policy. [Formerly 659.405; 2003 c.254 §2]

 

      659A.106 Employers to whom ORS 659A.100 to 659A.145 apply. The requirements of ORS 659A.100 to 659A.145 apply only to employers who employ six or more persons. The requirements of ORS 659A.100 to 659A.145 do not apply to the Oregon National Guard. [2001 c.621 §23]

 

      659A.109 Discrimination against worker for using procedures in ORS 659A.100 to 659A.145 prohibited. It is an unlawful employment practice for an employer to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in ORS 659A.100 to 659A.145 or has given testimony under the provisions of such sections. [Formerly 659.410]

 

      659A.112 Discrimination against disabled person in employment prohibited. (1) It is an unlawful employment practice for any employer to refuse to hire, employ or promote, to bar or discharge from employment or to discriminate in compensation or in terms, conditions or privileges of employment because an otherwise qualified person is a disabled person.

      (2) An employer violates subsection (1) of this section if the employer does any of the following:

      (a) The employer limits, segregates or classifies a job applicant or employee in a way that adversely affects the opportunities or status of the applicant or employee because the applicant or employee is a disabled person.

      (b) The employer participates in a contractual or other arrangement or relationship that has the effect of subjecting an otherwise qualified job applicant or employee who is a disabled person to the discrimination prohibited by ORS 659A.112 to 659A.139, including but not limited to participating in a relationship with an employment or referral agency, a labor union, an organization providing fringe benefits to an employee of the employer, or an organization providing training and apprenticeship programs.

      (c) The employer utilizes standards, criteria or methods of administration that have the effect of discrimination on the basis of disability, or that perpetuate the discrimination of others who are subject to common administrative control.

      (d) The employer excludes or otherwise denies equal jobs or benefits to an otherwise qualified person because the person is known to have a relationship or association with a disabled person.

      (e) The employer does not make reasonable accommodation to the known physical or mental limitations of an otherwise qualified disabled person who is a job applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer.

      (f) The employer denies employment opportunities to a job applicant or employee who is an otherwise qualified disabled person, if the denial is based on the need of the employer to make reasonable accommodation to the physical or mental impairments of the employee or applicant.

      (g) The employer uses qualification standards, employment tests or other selection criteria that screen out or tend to screen out a disabled person or a class of disabled persons unless the standard, test or other selection criterion, as used by the employer, is shown to be job-related for the position in question and is consistent with business necessity.

      (h) The employer fails to select and administer tests relating to employment in the most effective manner to ensure that when the test is administered to a job applicant or employee who has a disability that impairs sensory, manual or speaking skills, the test results accurately reflect the skills, aptitude or other characteristics of the applicant or employee that the test purports to measure, rather than reflecting the impaired sensory, manual or speaking skills of the employee or applicant. The provisions of this paragraph do not limit the ability of an employer to select or administer tests designed to measure sensory, manual or speaking skills of an employee or job applicant. [Formerly 659.436]

 

      659A.115 Qualification for position. For the purposes of ORS 659A.112, a disabled person is otherwise qualified for a position if the person, with or without reasonable accommodation, can perform the essential functions of the position. For the purpose of determining the essential functions of the position, due consideration shall be given to the employer’s determination as to the essential functions of a position. If an employer has prepared a written description before advertising or interviewing applicants for a job, the position description shall be considered evidence of the essential functions of the job. [Formerly 659.437]

 

      659A.118 Reasonable accommodation. (1) For the purposes of ORS 659A.112, reasonable accommodation of an otherwise qualified disabled person may include:

      (a) Making existing facilities used by employees readily accessible to and usable by disabled persons.

      (b) Job restructuring, part-time or modified work schedules or reassignment to a vacant position.

      (c) Acquisition or modification of equipment or devices.

      (d) Appropriate adjustment or modification of examinations, training materials or policies.

      (e) The provision of qualified readers or interpreters.

      (2) Notwithstanding any other provision of ORS 659A.100 to 659A.145, an employer may not be found to have engaged in an unlawful employment practice solely because the employer fails to provide reasonable accommodation to a person with a disability arising out of transsexualism. [Formerly 659.439]

 

      659A.121 Undue hardship. (1) For the purposes of ORS 659A.112, an accommodation imposes an undue hardship on the operation of the business of the employer if the accommodation requires significant difficulty or expense.

      (2) For the purpose of determining whether an accommodation requires significant difficulty or expense, the following factors shall be considered:

      (a) The nature and the cost of the accommodation needed.

      (b) The overall financial resources of the facility or facilities involved in the provision of the accommodation, the number of persons employed at the facility and the effect on expenses and resources or other impacts on the operation of the facility caused by the accommodation.

      (c) The overall financial resources of the employer, the overall size of the business of the employer with respect to the number of its employees and the number, type and location of the employer’s facilities.

      (d) The type of operations conducted by the employer, including the composition, structure and functions of the workforce of the employer and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the employer. [Formerly 659.440]