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BUREAU OF LABOR AND INDUSTRIES

 

DIVISION 6

INJURED WORKERS; DISABILITY; VETERANS AND PERSONS IN UNIFORMED SERVICES

Injured Workers

839-006-0100

Purpose and Scope

(1) The Civil Rights Division of the Bureau of Labor and Industries enforces the provisions of ORS 659A.040 to 659A.052, prohibiting discrimination against employees who use the Workers' Compensation statutes and providing specific reinstatement and reemployment requirements.

(2) It is an unlawful employment practice for an employer to discriminate against a worker injured on the job who applies for benefits under or in other ways invokes or uses the Oregon Workers' Compensation system. An employer may not discriminate against workers who have testified, are about to give testimony, or who are perceived as having testified in connection with Oregon Workers' Compensation procedures or civil procedures pursuant to ORS 659A.040, 659A.043, 659A.046.

(3) A worker or injured worker claiming a violation under Oregon's injured worker statutes may file a complaint with the Civil Rights Division as provided in OAR 839-003-0025.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.040 - ORS 659A.052
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 4-1996, f. & cert. ef. 3-12-96; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02

839-006-0105

Definitions

(1) "Attending physician" means a physician or physician's assistant primarily responsible for the treatment of a worker's on-the-job injury as described in ORS 656.005(12).

(2) "Authorized nurse practitioner" means a nurse practitioner authorized to provide compensable medical services under ORS 656.245.

(3) "Bureau" means the Bureau of Labor and Industries.

(4) "Demand" means the injured worker informing the employer that the worker seeks reinstatement or reemployment.

(5) "Division" means the Civil Rights Division of the Bureau of Labor and Industries.

(6) "Injured worker" means a worker who has a compensable injury as defined in ORS 656.005(7)(a). Injured worker, for purposes of ORS 659A.040, includes a worker who has invoked the protection of the Oregon Workers' Compensation statutes. Injured worker, for the purposes of reinstatement rights under ORS 659A.043, does not include:

(a) a worker hired on a temporary basis as a replacement for an injured worker;

(b) a seasonal worker hired for and actually employed for less than six months in a calendar year; or

(c) a worker whose employment at the time of the injury resulted from working short terms of employment as the result of referral by a hiring hall operating pursuant to a collective bargaining agreement.

(7) "Invoke," as used in ORS 659A.040, includes, but is not limited to, a worker's reporting of an on-the-job injury or a perception by the employer that the worker has been injured on the job or will report an injury.

(8) "Release to the former position" means a release to the position a worker held prior to an on-the-job injury as provided in ORS 659A.043.

(9) "Release to an available, suitable position" means a release to work that meets an injured worker's medical restrictions and for which the worker possesses the necessary skills and abilities as provided in ORS 659A.046. An available, suitable position may vary in duties or hours from the worker's former position and may be a different position or a modified version of the injured worker's former position. An available, suitable position is paid at the rate normally paid by the employer for that position.

(10) "Supervisor" means a person exercising direct supervisory authority over a worker's position.

(11) "Worker" means any person, including a minor, whether lawfully or unlawfully employed, engaged to furnish services for remuneration, subject to the direction and control of an employer. A worker also includes salaried, elected and appointed officials of the state, state agencies, counties, cities, school districts and other public corporations, whether or not the worker is supervised by the employer. For the purposes of ORS 659A.040, worker also includes an applicant for a job. A worker does not include any person whose services are performed as an inmate or ward of a state institution or any person whose services are performed as part of the eligibility requirements for a public assistance grant, as provided in ORS 656.005(30).

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.040 - 659A.052
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 13-1990(Temp), f. & cert. ef. 9-4-90; BL 3-1991, f. 2-12-91, cert. ef. 2-15-91; BL 4-1996, f. & cert. ef. 3-12-96; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 43-2007, f. 12-31-07, cert. ef. 1-1-08

839-006-0115

Covered Employees and Employers

(1) As provided in ORS 659A.040, an employer may not discriminate against employees or applicants 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 ORS 659A.040 to 659A.052 or has given testimony, is about to give testimony or is perceived as having testified under the provisions of such sections. As provided in ORS 659A.046, an employer must reemploy an injured worker who is unable to perform the duties of the worker's former position to an available, suitable position. "Employer" for the purposes of ORS 659A.040 and 659A.046 includes persons employing six or more employees on a full-time, part-time or seasonal basis at one of the following times:

(a) At the time of the worker's on-the-job injury;

(b) At the time of the injured worker's demand for reemployment under ORS 659A.046; or

(c) At the time of the discriminatory act alleged under ORS 659A.040.

(2) As provided in ORS 659A.043, an employer must reinstate an injured worker to the worker's former position. If the former position no longer exists the employer must offer the worker a vacant, suitable position. "Employer" for the purposes of ORS 659A.043 are those employing 21 or more workers at one of the following times:

(a) At the time of the worker's on-the-job injury; or

(b) At the time of the worker's demand for reinstatement to the worker's former position under ORS 659A.043.

(3) The "six or more persons" referred to in section (1) and the "21 or more employees" referred to in section (2) need not be employed within Oregon.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.100, ORS 659A.040, ORS 659A.043 - ORS 659A.046 & ORS 659A.049
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 13-1990(Temp), f. & cert. ef. 9-4-90; BL 3-1991, f. 2-12-91, cert. ef. 2-15-91; BL 4-1996, f. & cert. ef. 3-12-96; BL 10-1996, f. & cert. ef. 12-4-96; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02

839-006-0117

Prohibited Discrimination

(1) Pursuant to ORS 659A.040, unlawful employment practices include:

(a) Refusal to hire or promote, to bar or discharge from employment or to discriminate in compensation, terms, conditions or privileges of employment because a person applies for benefits under or in other ways invokes or uses Oregon Worker's Compensation system as provided for in ORS Chapter 656.

(b) Discriminating against a person who has testified, is about to give testimony, or who is perceived as having testified in connection with Oregon Worker's Compensation procedures or civil procedures pursuant to ORS 659A.040, 659A.043 and 659A.046.

(2) Pursuant to ORS 659A.030(1)(g), it is an unlawful employment practice for a person, whether an employer or employee, to aid, abet, incite, compel or coerce an individual to do any of the acts forbidden by ORS 659A.040 to 659A.052, or attempt to do so.

(3) When disciplining workers for excessive absenteeism, an employer cannot count the time an injured worker is off the job because of a compensable injury when calculating the injured worker's absenteeism rate, as long as the time off the job is covered by time loss compensation or are absences medically certifiable by the attending physician in connection with the compensable injury.

(4) A person claiming a violation under Oregon's injured worker statutes may file a complaint with the Civil Rights Division as provided in OAR 839-003-0025.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.030(1)(g), ORS 659A.040 & ORS 659A.820
Hist.: BLI 10-2002, f. & cert. ef. 5-17-02

839-006-0130

Injured Worker Reinstatement Under ORS 659A.043

(1) An employer with 21 or more employees at the time of a worker's on-the-job injury or at the time an injured worker demands reinstatement to the former position must reinstate the worker to the worker's former position if:

(a) The injured worker's former position still exists (has not been eliminated for bona fide reasons). The former position "exists" even though the position may have been renamed or reclassified;

(b) The injured worker's former position is available. A worker's former position is "available" even if that position has been filled by a replacement worker while the injured worker was absent and regardless of the employer's possible preference for the replacement worker;

(c) The injured worker is not disabled from performing the duties of the former position; and

(d) Timely demand is made as provided in OAR 839-006-0130(5)(d).

(2) If the former position exists but is not available (due to seniority or other employment restrictions contained in a valid collective bargaining agreement that the injured worker does not meet; see subsection (8) of this rule), the employer must offer the injured worker a vacant, suitable position.

(a) For the purposes of ORS 659A.043, a suitable position is one that is most similar to the former position in compensation, duties, responsibilities, skills, location, duration (full or part-time, temporary or permanent), and shift.

(b) If a suitable position is not available at the worker's normal work location the employer must consider vacant, suitable positions in all the employer's facilities within reasonable commuting distance, not just the facility where the injured worker was previously employed.

(c) Prior to beginning a vacant, suitable position, the injured worker has the right to discuss position duties with the employer and to receive written clarification of the specific duties.

(3) At the time of the injured worker's demand for reinstatement, if the worker's former position no longer exists and no other position exists that is vacant and suitable, the injured worker must follow the employer's reporting policy until the employer offers the worker the former position or a vacant, suitable position. The employer's reporting policy must be written, non-discriminatory and effectively made known to the employer's work force. If the employer has no such reporting policy, the employer may require the injured worker to inform the employer of any change in address and telephone number within ten days of the change, provided the employer gives prior written notice of this requirement to the injured worker.

(4) A certificate by the attending physician or authorized nurse practitioner that the attending physician or authorized nurse practitioner approves the worker's return to the worker's regular employment or other suitable employment shall be prima facie evidence that the worker is able to perform such duties.

(a) In addition to an attending physician or authorized nurse practitioner certificate, the employer may require, within a reasonable period of time and at the employer's expense, further evidence of the injured worker's physical ability to perform the duties of the former position. The employer may, in a manner consistent with worker's compensation regulations, consult the worker's attending physician or authorized nurse practitioner regarding the worker's condition as it relates to the worker's ability to perform the duties of the former position.

(b) The employer may not question the attending physician's or authorized nurse practitioner's release as a subterfuge to avoid employer responsibilities under ORS 659A.043.

(5) The injured worker must make demand for reinstatement to the former position according to the employer's written policy effectively made known to the employer's workforce. If the employer has no such policy, the injured worker's demand:

(a) May be oral or written;

(b) Must be made to a supervisor, personnel officer or person in management;

(c) May be made by the injured worker or the injured worker's attorney; and

(d) May be made at any time after the attending physician or authorized nurse practitioner has released the injured worker for reinstatement to the former position, but must be made no later than seven calendar days after receiving certified mail notice from the insurer or self-insured employer that the worker's attending physician or authorized nurse practitioner has released the worker for return to the worker's former position. For purposes of this section, receipt of notice is deemed to have occurred on the day the worker signs a receipt for the mailing or three days following the deposit of the certified mail with the U.S. Postal Service, whichever occurs first, provided such mail is sent to the worker's last known address and that address is within the state. If the worker's last known address is outside of the state, the date of notice is the date the worker signs a receipt for the mailing or seven days after the mailing, whichever occurs first.

(6) Extenuating circumstances may, in very rare instances, extend the time allowed for timely demand for reinstatement.

(7) When the injured worker has not made demand for reinstatement to the former position because the employer has made it known to the worker that reinstatement will not be considered, even if a suitable position is vacant, and that an actual demand would therefore be futile, the division will deem the worker to have made timely demand.

(8) The right of reinstatement is guaranteed by ORS 659A.043. Conditions of reinstatement are subject to seniority and other employment restrictions contained in a valid collective bargaining agreement.

(9) If the injured worker's former position no longer exists, and there is no vacant, suitable position, the employer has no obligation to create a position for a returning injured worker. If the employer creates such a position, the position may be discontinued at any time.

(10) Except as provided in these rules, an injured worker has no greater right to a position or other employment benefit than if the worker had not been injured.

(11) The duty under ORS 659A.043 to reinstate an injured worker to the worker's former position extends to a successor employer to the worker's employer at the time of injury. Determining whether a respondent is a successor employer involves a nine-part test. Not every element of the test need be present to find an employer to be a successor; the facts must be considered together to reach a determination:

(a) Whether respondent had notice of the injured worker at the time of acquiring or taking over the business;

(b) The ability of the predecessor to reinstate the injured worker;

(c) Whether there has been a substantial continuity of business operations;

(d) Whether the respondent uses the same plant as the predecessor;

(e) Whether respondent uses the same or substantially the same work force as the predecessor;

(f) Whether respondent uses the same or substantially the same supervisory personnel as the predecessor;

(g) Whether under respondent the same jobs exist under substantially the same working conditions as under the predecessor;

(h) Whether respondent uses the same machinery, equipment and methods of production as the predecessor;

(i) Whether respondent produces the same product as the predecessor.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.043
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 3-1986, f. & ef. 4-7-86; BL 13-1990(Temp), f. & cert. ef. 9-4-90; BL 3-1991, f. 2-12-91, cert. ef. 2-15-91; BL 4-1996, f. & cert. ef. 3-12-96; BL 10-1996, f. & cert. ef. 12-4-96; BL 2-1998, f. & cert. ef. 2-3-98; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 43-2007, f. 12-31-07, cert. ef. 1-1-08

839-006-0131

Loss of Reinstatement Rights Under ORS 659A.043

(1) An injured worker meeting the requirements for reinstatement under ORS 659A.043 loses the right to reinstatement to the worker's former position when any of the following occurs:

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

(b) The worker is eligible for 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 of modified employment which is suitable prior to becoming medically stationary, except as provided under section (2) of this rule;

(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 an authorized nurse practitioner has released the worker for employment unless the worker requests reinstatement within that time period;

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

(g) The worker is discharged for bonafide reasons not connected with the injury and for which others are or would be discharged; or

(h) The worker clearly and unequivocally abandons employment with the employer.

(2) A worker who refuses an offer of employment under subsection (1)(d) of this rule and who otherwise is entitled to Oregon Family Leave Act (OFLA) leave under ORS 659A.150 to 659A.186:

(a) Automatically commences a period of OFLA leave upon refusing the offer of employment; and

(b) Need not give notice to the employer that would otherwise be required under OAR 839-009-0250 that the employee is commencing a period of OFLA leave. See ORS 659A.162 and 659A.043.

(3) The right to reinstatement does not apply to:

(a) A worker hired on a temporary basis as a replacement for an injured worker;

(b) A seasonal worker hired for and actually employed for less than six months in a calendar year; or

(c) A worker whose employment at the time of injury resulted from referral to short-term employment from a hiring hall operating pursuant to a collective bargaining agreement.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.150 - ORS 659A.186
Hist.: BL 4-1996, f. & cert. ef. 3-12-96; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 11-2006(Temp), f. 3-16-06, cert. ef. 3-17-06 thru 9-8-06; Administrative correction 9-21-06; BLI 34-2006, f. 10-3-06, cert. ef. 10-4-06; BLI 44-2007, f. 12-31-07, cert. ef. 1-1-08

839-006-0135

Injured Worker 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.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.046
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 3-1986, f. & ef. 4-7-86; BL 13-1990(Temp), f. & cert. ef. 9-4-90; BL 3-1991, f. 2-12-91, cert. ef. 2-15-91; BL 4-1996, f. & cert. ef. 3-12-96; BL 2-1998, f. & cert. ef. 2-3-98; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 43-2007, f. 12-31-07, cert. ef. 1-1-08

839-006-0136

Loss of Reemployment Rights Under ORS 659A.046

An injured worker meeting the requirements for reemployment under ORS 659A.046 loses the right to reemployment to an available, suitable position when any of the following occurs:

(1) A medical determination by the attending physician or authorized nurse practitioner or, after an appeal of such determination, by a medical arbiter or panel of medical arbiters pursuant to ORS chapter 656, that the worker cannot return to any position of reemployment with the employer.

(2) The worker is eligible for and participates in vocational assistance under ORS 656.340;

(3) The worker accepts suitable employment with another employer after becoming medically stationary;

(4) The worker refuses a bona fide offer from the employer of light duty or modified employment that is suitable prior to becoming medically stationary. Except that a worker who refuses an offer of employment under this section, and who otherwise is entitled to Oregon Family Leave Act (OFLA) leave under ORS 659A.150 to 659A.186:

(a) Automatically commences a period of OFLA leave upon refusing the offer of employment; and

(b) Need not give notice to the employer that would otherwise be required under OAR 839-009-0250 that the employee is commencing a period of OFLA leave. See ORS 659A.162 and ORS 659A.046;

(5) 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 authorized nurse practitioner has released the worker for reemployment unless the worker requests reemployment within that time period;

(6) Three years elapse from the date of injury;

(7) The worker is discharged for bona fide reasons not connected with the injury and for which others are or would be discharged; or

(8) The worker clearly and unequivocally abandons employment with the employer.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.046, 659A.150-659A.186
Hist.: BL 4-1996, f. & cert. ef. 3-12-96; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 22-2005(Temp), f. 10-26-05, cert. ef. 10-27-05 thru 4-24-06; BLI 10-2006, f. 3-16-06, cert. ef. 3-20-06; BLI 44-2007, f. 12-31-07, cert. ef. 1-1-08

839-006-0145

Suitable Employment

(1) An employer required to return an injured worker to a vacant, suitable position under ORS 659A.043 or an available, suitable position under 659A.046, is not required to offer the worker a selection of suitable positions.

(2) In determining whether a particular position is suitable, the division will consider the employer's size, diversity, nature and pattern of position openings and whether the injured worker is qualified to perform the position.

(3) "Qualified" means:

(a) The injured worker meets minimum standards used by the employer to fill the position;

(b) The injured worker has performed the position in an acceptable manner; or

(c) The injured worker would be qualified for the position with the same training given to another worker newly placed in the position.

(4) For the purposes of ORS 659A.043, a "suitable position" is one that is most similar to the former position in compensation, duties, responsibilities, skills, location, duration (full or part-time, temporary or permanent), and shift. For the purposes of ORS 659A.046, a "suitable position" also meets the injured worker's medical restrictions.

(a) "Similar compensation" is the normal compensation the employer pays to others of the same education, skill and seniority employed in that position. This compensation may be greater than, the same as, or less than the rate the injured worker was earning at the time of injury, provided that it is not a subterfuge for the employer to avoid responsibilities;

(b) "Similar location" means that the position is within reasonable commuting distance, except where the former work site is no longer in operation or the nature of the employer's business routinely involves the transfer of employees. A position outside of Oregon is suitable if the worker and employer mutually agree.

(5) An employer is neither required to offer nor prohibited from offering a position that would promote the returning injured worker. A managerial or supervisory position is suitable for a returning injured worker whose former position was managerial or supervisory. Should a returning injured worker compete or bid for a managerial or supervisory position, nothing in this rule allows the employer to use the injury as a reason to discriminate against the worker.

(6) The employer may assign the injured worker to different duties at the worker's regular compensation provided that:

(a) The assignment is temporary and is part of a return-to-work program;

(b) The worker is returned to available and suitable work when the worker is physically capable; and

(c) The assignment is not a subterfuge for the employer to avoid responsibilities.

(7) If an employer offers a position that the injured worker believes the worker is physically unable to perform, the worker is not required to accept the position, but must provide verbal or written notice to the employer that the worker believes the worker is physically unable to perform the duties of the position. The employer may offer a suitable position or may require the worker to provide medical evidence of the worker's inability to perform the duties of the position. If an employer requires medical verification, the employer must give the worker written notice that the worker has 20 calendar days from the receipt of the notice to provide medical evidence of the worker's physical inability to perform the duties of the position.

(8) If an injured worker accepts an offer of suitable work and, after beginning the position, the worker is physically unable to perform the duties of the position, the worker must provide verbal or written notice to the employer that the worker believes the worker is physically unable to perform the duties of the position. The employer may offer a suitable position or may require the worker to provide medical evidence of the worker's inability to perform the duties of the position. If an employer requires medical verification, the employer must give the worker written notice that the worker has 20 calendar days from the receipt of the notice to provide medical evidence of the worker's physical inability to perform the duties of the position.

(9) If an employer offers an injured worker a position that the worker considers not suitable for reasons other than physical ability, the worker must accept the offered position. The worker must then provide verbal or written notice to the employer that the worker considers the position not suitable. The employer may offer a suitable position or may require the worker to provide the reasons, under the criteria of section (4) of this rule, that the worker considers the position not suitable. If the employer requires such information, the employer must give the worker written notice that the worker has 20 calendar days from the receipt of the notice to provide the reasons in writing.

(10) When an injured worker timely provides the evidence required in sections (7), (8) and (9) of this rule, the position will be considered not suitable and the employer must make a suitable position offer as required under ORS 659A.043 or 659A.046. If the worker fails to timely provide the information requested under sections (7), (8) and (9) of this rule, or the information is not sufficient, the position will be considered suitable.

(11) If the employer and the injured worker disagree about the suitability of an offered position, and the worker files a complaint as provided by statute and these rules, the division will determine the position's suitability.

(12) The Civil Rights Division may accept a complaint where a worker did not object to the position offered by the employer as required in sections (7), (8) and (9) of this rule when the worker had a verifiable, legitimate fear that an objection to the offered position would result in an adverse employment action.

(13) If an injured worker makes a timely demand for reemployment to an available, suitable position under ORS 659A.046, an employer is required to review all position vacancies for three years from the date of injury and to offer the injured worker the first available, suitable position provided no other conditions of OAR 839-006-0136 have occurred.

(14) If the injured worker's former position has been eliminated for bona fide reasons, and the worker makes a timely demand for reinstatement to the worker's former position under ORS 659A.043, an employer is required to review all position vacancies for three years from the date of injury and to offer the injured worker the first vacant, suitable position provided no other conditions of OAR 839-006-0131 have occurred.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.043 & 659A.046
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 13-1990(Temp), f. & cert. ef. 9-4-90; BL 3-1991, f. 2-12-91, cert. ef. 2-15-91; BL 4-1996, f. & cert. ef. 3-12-96; BL 2-1998, f. & cert. ef. 2-3-98; BLI 14-1999 f. & cert. ef. 10-6-99; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 9-2006, f. 3-16-06, cert. ef. 3-20-06

839-006-0146

Injured Temporary Workers and Employer Responsibilities

Subject to these rules regarding position availability and suitability, and except as otherwise provided in a valid collective bargaining agreement:

(1) A worker serving on probationary or trial service status (whether due to initial hire, promotion or disciplinary measures) when a compensable injury occurs, has the same rights under ORS 659A.043 and 659A.046 as other injured workers. Upon return to work, however, the injured worker resumes the worker's probationary or trial service status unless the employer waives such status.

(2) A seasonal worker must be employed by an employer for at least six months in a calendar year to be eligible for reinstatement to the former position under ORS 659A.043. This requirement does not apply to seasonal workers seeking reemployment to an available, suitable position under ORS 659A.046. If the employment season ends prior to a seasonal worker's release to the former position under ORS 659A.043, or to an available, suitable position under ORS 659A.046, reinstatement or reemployment is deferred until the next season.

(3) A worker hired on a temporary basis as a replacement for an injured worker, and who is injured while in the temporary replacement position, does not have reinstatement rights under ORS 659A.043.

(4) A worker employed in a limited-duration or temporary position has reinstatement and reemployment rights under ORS 659A.043 and 659A.046 as follows:

(a) Under ORS 659A.043, a worker injured on the job while employed for a limited duration and released to the worker's former position must be reinstated to the former position, from the date of timely demand until the date the limited duration was originally set to expire;

(b) Under ORS 659A.043, a worker injured on the job while employed in a temporary position ending at the completion of a defined task, and released to the former position, must be reinstated to the former position from the date of timely demand until the task is completed;

(c) Under ORS 659A.046, a worker injured on the job while employed for a limited duration and released to an available, suitable position must be reemployed in the next available, suitable position from the date of timely demand until the date the limited duration was originally set to expire;

(d) Under ORS 659A.046, a worker injured on the job while employed in a temporary position ending at the completion of a defined task and released to an available, suitable position must be reemployed in the next available, suitable position from the date of timely demand until the task is completed.

(5) Nothing in this rule prevents an employer from extending the original period of employment in the worker's favor.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.043 & ORS 659A.046
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 13-1990(Temp), f. & cert. ef. 9-4-90; BL 3-1991, f. 2-12-91, cert. ef. 2-15-91; BL 4-1996, f. & cert. ef. 3-12-96; BL 2-1998, f. & cert. ef. 2-3-98; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02

839-006-0150

Retention and Loss of Reinstatement and Reemployment Rights

(1) An injured worker does not lose the right to reinstatement or reemployment under ORS 659A.043 or 659A.046 if:

(a) An employer discharges all employees who are off the job for a certain amount of time and discharges the injured worker under this policy for time off covered by time-loss compensation or for absences medically certifiable by the attending physician or authorized nurse practitioner in connection with the compensable injury.

(b) An employer discharges the injured worker for reasons other than for cause;

(c) An injured worker quits or resigns involuntarily or under mistake of fact;

(d) An injured worker making a timely demand for reinstatement or reemployment takes a position that is not suitable with another employer while waiting for a suitable position to become available; or

(e) An injured worker, disabled from performing the duties of the worker's former regular employment, accepts an available, suitable position with the same employer under ORS 659A.046 and these rules.

(2) 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 the requirements of OAR 839-006-0130.

(3) If an injured worker is unable to perform the duties of the former position but is released by the attending physician or authorized nurse practitioner to perform duties that meet the workers medical restrictions, the worker must make timely demand for reemployment to an available, suitable position, subject to the requirements of OAR 839-006-0135.

(4) Compliance with the duty to mitigate damages by seeking employment with another employer will not extinguish an injured worker's reinstatement rights, except when the injured worker acquires and commences suitable employment with another employer after becoming medically stationary.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.040, 659A.043 & 659A.046
Hist.: BL 1-1983, f. & ef. 1-26-83; BL 13-1990(Temp), f. & cert. ef. 9-4-90; BL 3-1991, f. 2-12-91, cert. ef. 2-15-91; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 43-2007, f. 12-31-07, cert. ef. 1-1-08

Disability and Employment Rights

839-006-0200

Purpose and Scope

(1) It is the policy of the State of Oregon to guarantee individuals with disabilities the fullest possible participation in the social and economic life of the state, including employment. The people of Oregon have the right to employment without discrimination on the basis of disability.

(2) It is an unlawful employment practice for any employer to refuse to hire or promote, to bar or discharge from employment or to discriminate in compensation, terms, conditions or privileges of employment because a qualified individual has a disability.

(3) Prohibited discrimination includes, but is not limited to:

(a) Limiting, segregating or classifying applicants or employees with disabilities in a way that adversely affects opportunities or status;

(b) Participating in a contractual or other arrangement with the effect of discriminating against applicants or employees with disabilities, including but not limited to, relationships with employment or referral agencies, labor unions, organizations providing fringe benefits, or training and apprenticeship programs;

(c) Using standards, criteria or methods of administration that have the effect of discrimination against applicants or employees with disabilities;

(d) Excluding or denying equal employment or benefits to a qualified individual because the individual is known to have an association with an individual with a disability;

(e) Failing to make reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the business of the employer;

(f) Using qualification standards, tests or other criteria, including those based on an individual’s uncorrected vision or unaided hearing, that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criterion, as used by the employer, is job related for the position in question and is consistent with business necessity;

(g) Failing to select and administer tests in a way that accurately reflects the skills and aptitude of applicants or employees with disabilities that impair sensory, manual or speaking skills. An employer may, however, administer tests measuring sensory, manual and speaking skills of applicants and employees.

(4) It is an unlawful employment practice for an employment agency to:

(a) Fail or refuse to refer for employment, or otherwise discriminate against an individual because that individual has a disability; or

(b) Classify or refer an individual for employment because that individual has a disability.

(5) It is an unlawful employment practice for a labor organization to exclude or to expel from its membership, or to discriminate in any way against an individual because that individual has a disability.

(6) It is an unlawful employment practice for any employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any individual because the individual has opposed any practices forbidden by ORS 659A.103 to 659A.142.

(7) It is an unlawful employment practice for any person, whether an employer or an employee, to aid, abet, incite, compel or coerce an individual to do any of the acts forbidden by ORS 659A.103 to 659A.142 or to attempt to do so.

(8) The Civil Rights Division of the Bureau of Labor and Industries has the authority to protect the rights of employees and applicants with disabilities through the enforcement of ORS 659A.103 to 659A.142. OAR 839-006-0200 to 839-006-0265 interpret these statutes and apply to all complaints and inquiries relating to these statutes received on or after the effective date of these rules.

(9) An individual claiming a violation of ORS 659A.103 to 659A.142 may file a complaint with the Civil Rights Division as provided in OAR 839-003-0025.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 - 659A.142
Hist.: BL 2-1984, f. & ef. 1-31-84 ; BL 4-1996, f. & cert. ef. 3-12-96; BL 2-1998, f. & cert. ef. 2-3-98; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08; BLI 8-2010, f. & cert. ef. 2-24-10

839-006-0202

Determining Disability under ORS 659A.103 to 659A.142

The determination of whether an individual has a disability shall be construed in favor of broad coverage of individuals under ORS 659A.103 to 659A.142, to the maximum extent permitted by the terms of ORS 659A.103 to 659A.142.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 - 659A.142
Hist.: BLI 8-2010, f. & cert. ef. 2-24-10

839-006-0205

Definitions

(1) "Disability" means:

(a) A physical or mental impairment that substantially limits one or more major life activities of the individual.

(b) A record of having a physical or mental impairment that substantially limits one or more major life activities of the individual. An individual has a record of having a physical or mental impairment if the individual has a history of, or has been misclassified as having, a physical or mental impairment that substantially limits one or more major life activities of the individual.

(c) A physical or mental impairment that the individual is regarded as having.

(A) An individual is regarded as having a physical or mental impairment if the individual has been subjected to an action prohibited under ORS 659A.112 to 659A.139 because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity of the individual.

(B) An individual is not regarded as having a physical or mental impairment if the individual has an impairment that is minor and that has an actual or expected duration of six months or less.

(2) "Employer" means any person that employs six or more persons and includes the state, counties, cities, districts, authorities, public corporations and entities and their instrumentalities, except the Oregon National Guard, as provided in ORS 659A.106. The "six or more persons" need not be employed within Oregon.

(3) "Employment agency" includes any person undertaking to procure employees or opportunities to work.

(4) "Essential functions" are the fundamental duties of a position an individual with a disability holds or desires.

(a) A job function may be essential for any of several reasons, including but not limited to, the following:

(A) The position exists to perform that function;

(B) A limited number of employees is available to carry out the essential function; or

(C) The function is highly specialized so that the position incumbent was hired for the expertise or ability required to perform the function.

(b) Evidence of whether a particular function is essential includes but is not limited to:

(A) The amount of time spent performing the function;

(B) The consequences of not performing the function;

(C) The terms of a collective bargaining agreement;

(D) The work experience of past incumbents in the job; and

(E) The current work experience of incumbents in similar jobs.

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

(6) "Major life activity" includes, but is not limited to:

(a) Caring for oneself;

(b) Performing manual tasks;

(c) Seeing;

(d) Hearing;

(e) Eating;

(f) Drinking;

(g) Sleeping;

(h) Walking;

(i) Standing;

(j) Lifting;

(k) Bending;

(l) Twisting;

(m) Speaking;

(n) Breathing;

(o) Cognitive functioning;

(p) Learning;

(q) Education;

(r) Reading;

(s) Concentrating;

(t) Remembering;

(u) Thinking;

(v) Communicating;

(w) Working: To be substantially limited in the major life activity of working, an individual must be significantly restricted in the ability to perform a class of jobs or a broad range of jobs in various classes as compared to the ability of an average person with comparable skill, experience, education or other job-related requirements needed to perform those same positions;

(x) Socialization;

(y) Sitting;

(z) Reaching;

(aa) Interacting with others;

(bb) Sexual relations;

(cc) Employment;

(dd) Ambulation;

(ee) Transportation;

(ff) Operation of a major bodily function, including but not limited to:

(A) Functions of the immune system;

(B) Normal cell growth; and

(C) Digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions; and

(gg) Ability to acquire, rent or maintain property.

(7) "Medical," as used in ORS 659A.133 and 659A.136 and these rules, means any information, whether oral, written or electronic that:

(a) Is created or received by an employer; and

(b) Relates to the past, present, or future physical or mental health status or condition of an individual.

(8) "Misclassified," as used in ORS 659A.104(b), means an erroneous or unsupported medical diagnosis, report, certificate or evaluation.

(9) "Physical or mental impairment" means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, traumatic brain injury, emotional or mental illness, and specific learning disabilities.

(10) A “qualified individual with a disability" is an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of a position that the individual holds or desires, and who can, with or without reasonable accommodation, perform the position's essential functions.

(11) "Reasonable accommodation" is defined in OAR 839-006-0206.

(12) "Substantially limits" means that an individual has an impairment, had an impairment or is perceived as having an impairment that restricts one or more major life activities of the individual as compared to most people in the general population.

(a) An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.

(b) An impairment that substantially limits one major life activity of the individual need not limit other major life activities of the individual.

(c) In determining whether an impairment substantially limits a major life activity, the ability of the individual with the impairment to perform that major life activity is compared to that of individuals in the general population.

(d) Factors that could affect whether an impairment “substantially limits a major life activity” include, but are not limited to, the presence of other impairments that combine to make the impairment disabling.

(e) An impairment that is episodic or in remission is considered to substantially limit a major life activity of the individual if the impairment would substantially limit a major life activity of the individual when the impairment is active. Nonetheless, not every impairment will constitute a disability within the meaning of this section.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 - 659A.142, H.B. 2111, 77th Leg., Reg. Session (Or. 2013)
Hist.: BL 2-1984, f. & ef. 1-31-84; BL 15-1990, f. 10-29-90, cert. ef. 11-1-90; BL 4-1996, f. & cert. ef. 3-12-96; BL 2-1998, f. & cert. ef. 2-3-98; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 9-2006, f. 3-16-06, cert. ef. 3-20-06; BLI 4-2007, f. 1-29-07, cert. ef. 2-1-07; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2013, f. & cert. ef 12-30-13

839-006-0206

Reasonable Accommodation

(1) "Reasonable Accommodation" means modifications or adjustments:

(a) To a job application process that enable a qualified applicant with a disability to be considered for the position;

(b) To the work environment, or to the manner or circumstances under which a position is customarily performed, that enable a qualified employee or applicant with a disability to perform the position's essential functions; or

(c) That enable a qualified employee or applicant with a disability to enjoy equal benefits and privileges of employment as are enjoyed by similarly situated employees without a disability.

(2) Reasonable accommodation of a qualified employee or applicant with a disability may include, but is not limited to:

(a) Making existing facilities used by employees readily accessible to and usable by an employee with a disability;

(b) Providing job restructuring, such as part-time or modified work schedules or reassignment to vacant positions;

(c) Acquiring or modifying equipment or devices;

(d) Appropriately adjusting or modifying examinations, training materials or policies;

(e) Providing qualified readers or interpreters; or

(f) Providing a leave of absence.

(3) Failure of an employer to make reasonable accommodation to the known physical or mental limitations of a qualified employee or applicant with a disability who requests reasonable accommodation or otherwise discloses to the employer a disability that may require reasonable accommodation, will be found to be prohibited discrimination unless the employer can demonstrate that reasonable accommodation would impose an undue hardship on the business of the employer. Undue hardship is defined at ORS 659A.121.

(4) Once a qualified employee or applicant with a disability has requested reasonable accommodation or otherwise disclosed to the employer a disability that may require reasonable accommodation, the employer has a duty to initiate a meaningful interactive process with the employee or applicant to determine whether reasonable accommodation would allow the employee or applicant to perform the essential functions of a position held or sought.

(5) A meaningful interactive process is an informal process between a qualified employee or applicant with a disability and an employer in an effort to identify potential reasonable accommodation.

(a) An interactive process between an employee or applicant with a disability and an employer, that readily identifies mutually agreeable reasonable accommodation, is a meaningful interactive process.

(b) When reasonable accommodation is not readily identifiable, a meaningful interactive process identifies the nature of the limitations resulting from the disability, relevant to potential reasonable accommodation that could allow the employee or applicant to perform the essential functions of the job.

(6) A meaningful interactive process is a mandatory step in the reasonable accommodation of a qualified employee or applicant with a disability. Failure of an employer to engage in a meaningful interactive process with a qualified employee or applicant with a disability who has requested reasonable accommodation or has otherwise disclosed to the employer a disability that may require reasonable accommodation is a failure to reasonably accommodate in violation of ORS 659A.112(2)(e) and:

(a) The employer may be found liable for remedies described in OAR 839-003-0090(5) regardless of whether reasonable accommodation would have been possible; and

(b) The employer may also be found liable for any other remedies described in OAR 839-003-0090 if reasonable accommodation would have been possible.

(7) An employer is not required to provide a reasonable accommodation to an individual who meets only the criterion of being regarded as having a physical or mental impairment that substantially limits one or more major life activities.

(8) An employer may not be found to have engaged in an unlawful employment practice solely because the employer fails to provide reasonable accommodation to an employee or applicant with a disability arising out of transsexualism. However, an employer may not:

(a) Refuse to hire an applicant or promote an employee;

(b) Bar or discharge an employee or applicant from employment; or

(c) Discriminate in compensation, terms, conditions or privileges of employment because an employee or applicant is transsexual when the employee or applicant is otherwise qualified.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 - 659A.142
Hist.: BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 4-2007, f. 1-29-07, cert. ef. 2-1-07; BLI 8-2010, f. & cert. ef. 2-24-10

839-006-0212

Determining Whether an Impairment Substantially Limits a Major Life Activity

(1) When determining whether an impairment substantially limits a major life activity of an individual, the determination shall be made without regard to the ameliorative effects of mitigating measures, including:

(a) Medication;

(b) Medical supplies, equipment or appliances;

(c) Low vision devices or other devices that magnify, enhance or otherwise augment a visual image, except that ordinary eyeglasses or contact lenses or other similar lenses that are intended to fully correct visual acuity or eliminate refractive error may be considered when determining whether an impairment substantially limits a major life activity of an individual;

(d) Prosthetics, including limbs and devices;

(e) Hearing aids, cochlear implants or other implantable hearing devices;

(f) Mobility devices;

(g) Oxygen therapy equipment or supplies;

(h) Assistive technology;

(i) Reasonable accommodations or auxiliary aids or services; or

(j) Learned behavioral or adaptive neurological modifications.

(2) The non-ameliorative effects of mitigating measures, such as negative side effects of medication or burdens associated with following a particular treatment regimen, may be considered when determining whether an individual’s impairment substantially limits a major life activity.

(3) The determination of whether a person is substantially limited in a major life activity shall be made on a case-by-case basis.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 - 659A.142
Hist.: BL 2-1998, f. & cert. ef. 2-3-98; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2013, f. & cert. ef 12-30-13

839-006-0240

Progressive Impairments

Conditions that are progressive (including, but not limited to, cancer, Hodgkin's disease, multiple sclerosis and HIV infection, whether or not such condition substantially limits the individual in any major life activity at the time of the alleged discrimination) may not form the basis for an employer to refuse to employ or promote; bar or discharge from employment; or discriminate in compensation, terms, conditions or privileges of employment.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 - 659A.142
Hist.: BL 2-1984, f. & ef. 1-31-84; BL 15-1990, f. 10-29-90, cert. ef. 11-1-90; BL 4-1996, f. & cert. ef. 3-12-96; BL 2-1998, f. & cert. ef. 2-3-98; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11

839-006-0242

Medical Evaluation

(1) An employer may not require any applicant to obtain a medical examination or evaluation prior to an offer of employment.

(2) An employer may require a medical examination or evaluation after making an employment offer but before the individual commences work, only if all individuals receiving offers of employment in that same job category are required to obtain a medical examination or evaluation.

(3) A drug test is not considered a medical examination or evaluation, for purposes of ORS 659A.133, 659A.136 and sections (1) and (2) of this rule, limiting employer actions in regard to medical examinations and inquiries.

(4) As provided in ORS 659A.306, the employer must pay the cost of any medical examination or evaluation or test, including a drug test, or the production of any health certificate required by the employer.

(5) An employer may not use qualification standards based on vision tests of an individual’s uncorrected vision unless the qualification standards are shown to be job-related for the position in question and are consistent with business necessity.

(6) An employer obtaining medical information about an employee or applicant must collect and maintain the information on separate medical forms and in separate medical files to be treated as confidential medical records, except as follows:

(a) Supervisors and managers may be informed regarding necessary restrictions on the work duties of an employee or necessary accommodations;

(b) First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and

(c) Officers and employees of the Division investigating compliance with disability discrimination laws must be provided relevant information on request.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 - 659A.142
Hist.: BL 2-1984, f. & ef. 1-31-84; BL 4-1996, f. & cert. ef. 3-12-96; BL 2-1998, f. & cert. ef. 2-3-98, Renumbered from 839-006-0235; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 8-2010, f. & cert. ef. 2-24-10

839-006-0244

Direct Threat

(1) Notwithstanding other provisions of these rules, an employer may refuse to employ an individual with a disability posing a direct threat to the health or safety of others. Direct threat means significant risk of substantial harm that cannot be eliminated or reduced below the level of significant risk of substantial harm by reasonable accommodation.

(2) The determination that an individual with a disability poses a "direct threat" is based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the position. The assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge or on the best available objective evidence. In making the determination, factors to be considered include:

(a) The duration of risk;

(b) The nature and severity of potential harm;

(c) The likelihood that potential harm will occur; and

(d) The imminence of potential harm.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 - 659A.142
Hist.: BL 2-1984, f. & ef. 1-31-84; BL 4-1996, f. & cert. ef. 3-12-96; BL 2-1998, f. & cert. ef. 2-3-98, Renumbered from 839-006-0230; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08; BLI 8-2010, f. & cert. ef. 2-24-10

839-006-0250

Customer or Co-Worker Preference

An employer may not consider the attitude or preference of employers, managers, supervisors, co-workers, customers, clients or the general public toward an individual’s perceived or actual impairment in determining whether an individual is qualified for a position.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 - 659A.142
Hist.: BL 2-1984, f. & ef. 1-31-84; BL 4-1996, f. & cert. ef. 3-12-96; BL 2-1998, f. & cert. ef. 2-3-98; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 8-2010, f. & cert. ef. 2-24-10

839-006-0255

Effect of Law

Where a state or federal law or regulation prevents employment in a particular position of an individual with a specified, medically verifiable impairment or specified severity of impairment, an employer is not required to employ an individual with a disability with such an impairment in that position. Nothing in this rule will be construed to permit denial of employment to such individual in a position that is not subject to such law or regulations.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 - 659A.142
Hist.: BL 2-1984, f. & ef. 1-31-84; BL 4-1996, f. & cert. ef. 3-12-96; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08; BLI 8-2010, f. & cert. ef. 2-24-10

839-006-0265

Subterfuge

An employer may not use the provisions of these rules as a subterfuge to avoid the employer's duty not to discriminate under ORS 659A.103 to 659A.142.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 - 659A.142
Hist.: BL 2-1998, f. & cert. ef. 2-3-98; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 8-2010, f. & cert. ef. 2-24-10

Discrimination against Persons with Disabilities by State Government

839-006-0270

Purpose and Scope: State Government

(1) ORS 659A.103 provides that it is the policy of the State of Oregon to guarantee individuals the fullest possible participation in the social and economic life of the state, including participating in and receiving the benefits of the services, programs and activities of state government, without discrimination on the basis of disability.

(2) ORS 659A.142(5) provides that:

(a) It is an unlawful practice for state government to exclude an individual from participation in or deny an individual the benefits of the services, programs or activities of state government or to make any distinction, discrimination or restriction because the individual has a disability.

(b) State government shall make reasonable modifications in services, programs or activities, including but not limited to policies and procedures, when the modifications are necessary for state government to comply with ORS 659A.142(5).

(c) State government shall provide auxiliary aids and services when necessary to ensure equal access to state government programs, services, and activities.

(3) Theories applied in cases of alleged discrimination under ORS 659A.142(5) are found in OAR 839-006-0340.

(4) An individual claiming a violation of ORS 659A.142(5) may file a complaint with the Civil Rights Division as provided in OAR 839-003-0025.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.142(5)
Hist.: BLI 21-2005, f. 10-20-05, cert. ef. 10-21-05; BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2013, f. & cert. ef 12-30-13

839-006-0275

Definitions — Disability

(1) “Disability” has the meaning given in OAR 839-006-0205(1) and (8).

(2) "Major life activity” has the meaning given in OAR 839-006-0205(6).

(3) "Physical or mental impairment" has the meaning given in OAR 839-006-0205(9).

(4) "Substantially limits" has the meaning given in OAR 839-006-0205(12).

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103, 659A.104, 659A.106, 659A.109, 659A.139, 659A.142
Hist.: BLI 21-2005, f. 10-20-05, cert. ef. 10-21-05; BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11

839-006-0280

Definitions — State Government

(1) For purposes of ORS 659A.142(5) and these rules, "state government" has the meaning given to that term in ORS 174.111 and includes the executive, judicial and legislative departments of state government. Consistent with ORS 174.108(3), it does not include the Oregon Health and Science University, the Oregon State Bar, any intergovernmental entity formed by a public body with another state or with a political subdivision of another state, or any intergovernmental entity formed by a public body with an agency of the federal government.

(2) Pursuant to ORS 174.112, "executive department" means all statewide elected officers other than judges, and all boards, commissions, departments, divisions and other entities, without regard to the designation given to those entities, that are within the executive department of government as described in Article III, Section 1 of the Oregon Constitution, and that are not in the judicial department, legislative department, local governments or special government bodies. "Executive department" includes:

(a) An entity created by statute for the purpose of giving advice only to the executive department and that does not have members who are officers or employees of the judicial department or legislative department;

(b) An entity created by the executive department for the purpose of giving advice to the executive department, if the document creating the entity indicates that the entity is a public body; and

(c) Any entity created by the executive department other than an entity described in paragraph (b) of this subsection, unless the document creating the entity indicates that the entity is not a governmental entity or the entity is not subject to any substantial control by the executive department.

(3) Pursuant to ORS 174.113, "judicial department" means the Oregon Supreme Court, the Oregon Court of Appeals, the Oregon Tax Court, the Oregon circuit courts and all administrative divisions of those courts, whether denominated as boards, commissions, committees or departments or by any other designation. "Judicial department" includes:

(a) An entity created by statute for the purpose of giving advice only to the judicial department and that does not have members who are officers or employees of the executive department or legislative department;

(b) An entity created by the judicial department for the purpose of giving advice to the judicial department, if the document creating the entity indicates that the entity is a public body; and

(c) Any entity created by the judicial department other than an entity described in paragraph (b) of this subsection, unless the document creating the entity indicates that the entity is not a governmental entity or the entity is not subject to any substantial control by the judicial department.

(4) Pursuant to ORS 174.114, "legislative department" means the Legislative Assembly, the committees of the Legislative Assembly and all administrative divisions of the Legislative Assembly and its committees, whether denominated as boards, commissions or departments or by any other designation. "Legislation department" includes:

(a) An entity created by statute for the purpose of giving advice only to the legislative department and that does not have members who are officers or employees of the executive department or judicial department;

(b) An entity created by the legislative department for the purpose of giving advice to the legislative department, but that is not created by statute, if the document creating the entity indicates that the entity is a public body; and

(c) Any entity created by the legislative department by a document other than a statute and that is not an entity described in paragraph (b) of this subsection, unless the document creating the entity indicates that the entity is not a governmental entity or the entity is not subject to any substantial control by the legislative department.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103, 659A.104, 659A.106, 659A.109, 659A.139, 659A.142
Hist.: BLI 21-2005, f. 10-20-05, cert. ef. 10-21-05; BLI 8-2010, f. & cert. ef. 2-24-10

839-006-0290

Other Statutes, Regulations and Agencies Governing Access by or Discrimination Against Persons with Disabilities

(1) Public transportation services, programs, and activities of public entities are subject to Title II of the federal Americans with Disabilities Act and regulated by the U.S. Department of Transportation. See 42 USC 12141 ¦ 221 and 49 CFR ¦ 37. Public transportation is covered by ORS 659A.142(4).

(2) Accessibility of government facilities is subject to Title II of the Americans with Disabilities Act, 42 USC ¦12131. The U.S. Department of Justice regulates existing government facilities (28 CFR ¦ 35.150) and new construction and alterations to government facilities (28 CFR ¦ 35.151). The Oregon Department of Consumer and Business Services has jurisdiction over disability access to state and local government facilities in Oregon. See ORS 447.210 to 447.310 and administrative rules and standards adopted pursuant thereto.

(3) The federal Rehabilitation Act provides that no otherwise qualified individual with a disability in the United States shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any federal executive agency or by the United States Postal Service. 29 USC ¦ 794.

(4) Discrimination against individuals with disabilities in employment is subject to ORS 659A.103 to 659A.139 and OAR 839-006-0200 to 0265.

(5) Discrimination against individuals with disabilities by places of public accommodation is subject to ORS 659A.142(4) and OAR 839-006-0300 to 0335.

(6) Assistance animals in places of public accommodation or access to state government are subject to SB 610, 77th Leg., Reg. Session (Or. 2013) and OAR 839-006-0345.

(7) Discrimination against individuals with disabilities in real property transactions is subject to ORS 659A.142, 659A.145 and OAR 839-005-0195 to 839-005-0220.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 - .142, HB 2668, 77th Leg., Reg. Session (Or. 2013) and SB 610, 77th Leg., Reg. Session (Or. 2013)
Hist.: BLI 21-2005, f. 10-20-05, cert. ef. 10-21-05; BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2013, f. & cert. ef 12-30-13

839-006-0291

Reasonable Modifications: State Government

(1) State government shall make reasonable modifications in services, programs or activities, including but not limited to policies and procedures, when the modifications are necessary for state government to comply with ORS 659A.142(5) unless state government can demonstrate that making the modifications would result in a fundamental alteration in the nature of the service, program, or activity or would result in undue financial or administrative burdens on state government. This will be determined on a case by case basis.

(2) ORS 659A.142(5) and these rules are not intended to:

(a) Create an independent entitlement to any service, program or activity of state government; or

(b) Require state government to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program or activity or would result in undue financial or administrative burdens, as determined on a case-by-case basis.

(3) In determining whether financial and administrative burdens are undue for purposes of ORS 659A.142(5) and these rules, all resources available for use in the funding and operation of the service, program, or activity will be considered.

(4) Nothing in ORS 659A.142(5) or these rules prohibits state government from providing benefits, services, or advantages to individuals with disabilities beyond those required by 659A.142(5) or these rules.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.142(5)
Hist.: BLI 15-2013, f. & cert. ef 12-30-13

839-006-0292

Definitions — Auxiliary Aids and Services: State Government

(1) "Qualified interpreter" means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.

(2) "Qualified reader" means a person who is able to read effectively, accurately, and impartially using any necessary specialized vocabulary.

(3) "Video remote interpreting (VRI) service" means an interpreting service that uses video conferencing technology over dedicated lines or wireless technology offering high-speed, wide- bandwidth video connection that delivers high-quality video images.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.142
Hist.: BLI 15-2013, f. & cert. ef 12-30-13

839-006-0295

Provision of Auxiliary Aids and Services: State Government

(1) Except as provided for in subsection (3) of this section, state government must provide auxiliary aids and services when necessary to ensure equal access for individuals with disabilities to state government programs, services, and activities.

(2) Auxiliary aids and services may include, but are not limited to:

(a) Qualified interpreters, note takers, real-time computer-aided transcription services, transcription services, written materials, exchange of written notes, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning including real-time captioning, voice, text and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, telecommunications devices for deaf persons (TDDs), videotext displays, computer aided real time captioning (CART), accessible electronic and information technology, or other effective methods of making aurally delivered materials available to individuals with hearing impairments;

(b) Qualified readers, taped texts, audio recordings, brailed materials and displays, screen reader software, magnification software, optical readers, secondary auditory programs (SAP), large print materials, accessible electronic and information technology including e-mail, or other effective methods of making visually delivered materials available to individuals with visual impairments;

(c) Acquisition or modification of equipment or devices; and

(d) Other similar services and actions.

(3) State government is not required to provide auxiliary aids or services that state government can demonstrate would result in a fundamental alteration in the nature of a service, program or activity of state government or would result in undue financial or administrative burdens on state government. This will be determined on a case by case basis.

(4) State government may not place a surcharge to cover the costs of measures such as the provision of auxiliary aids or program accessibility, that are required to provide an individual with a disability with the nondiscriminatory treatment required by ORS 659A.142(5).

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.142
Hist.: BLI 21-2005, f. 10-20-05, cert. ef. 10-21-05; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2013, f. & cert. ef 12-30-13

 

Rights of Persons with Disabilities With Respect to Places of Public Accommodation

839-006-0300

Purpose and Scope

(1) It is the policy of the State of Oregon to guarantee individuals equal access to and enjoyment of places of public accommodation as defined in ORS 659A.142 and 659A.400. No place of public accommodation may discriminate against an individual by any distinction or restriction on the basis of disability.

(2) Discrimination on the basis of disability by places of public accommodation is an unlawful practice and the Civil Rights Division of the Bureau of Labor and Industries has the authority to protect the rights of individuals with disabilities through the enforcement of ORS 659A.142(4). OAR 839-006-0300 to 839-006-0335 interpret this statute and apply to all complaints and inquiries relating to these statutes received on or after the effective date of these rules.

(3) An individual claiming a violation of ORS 659A.142(4), pertaining to discrimination against individuals on the basis of disability by a place of public accommodation, may file a complaint with the Civil Rights Division as provided in OAR 839-003-0025.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.142
Hist.: BL 10-1996, f. & cert. ef. 12-4-96; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08; BLI 8-2010, f. & cert. ef. 2-24-10

839-006-0305

Definitions

(1) "Disability" has the meaning given in OAR 839-006-0205.

(2) "Major life activity" has the meaning given in OAR 839-006-0205(6).

(3) "Physical or mental impairment" has the meaning given in OAR 839-006-0205 (9).

(4) "Place of public accommodation" means:

(a) Any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise;

(b) Any place that is open to the public and owned or maintained by a public body, as defined in ORS 174.109, regardless of whether the place is commercial in nature; or

(c) Any service to the public that is provided by a public body, as defined in ORS 174.109, regardless of whether the service is commercial in nature.

(5) A place of public accommodation does not include:

(a) A Department of Corrections institution as defined in ORS 421.005;

(b) A state hospital as defined in ORS 162.135;

(c) A youth correction facility as defined in ORS 420.005;

(d) A local correction facility or lockup as defined in ORS 169.005; or

(e) An institution, bona fide club or place of accommodation that is in its nature distinctly private.

(6) "Substantially limits" has the meaning given in OAR 839-006-0205(12).

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.142, HB 2668, 77th Leg., Reg. Session (Or. 2013)
Hist.: BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 9-2006, f. 3-16-06, cert. ef. 3-20-06; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2013, f. & cert. ef 12-30-13

839-006-0307 [Renumbered to 839-006-0340]

839-006-0310

Removal of Physical Barriers to Facilities

(1) Places of public accommodation must remove physical barriers to entering and using existing facilities when such removal is readily achievable.

(2) "Readily achievable" means the barrier removal is easily accomplishable and can be carried out without much difficulty or expense. In determining whether a barrier removal is readily achievable, the factors to be considered include:

(a) The nature and cost of the action needed;

(b) The overall financial resources of the site or sites involved in the action;

(c) The number of persons employed at the site;

(d) The effect on expenses and resources;

(e) Legitimate safety requirements that are necessary for safe operation, including crime prevention measures;

(f) The impact otherwise of the barrier removal upon the operation of the site;

(g) The administrative or fiscal relationship of the site or sites in question to any parent corporation or entity; and

(h) The overall financial resources of any parent corporation or entity.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 & ORS 659A.142
Hist.: BL 10-1996, f. & cert. ef. 12-4-96; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02

839-006-0320

Provision of Auxiliary Aids

(1) Places of public accommodation must provide auxiliary aids and services when necessary to ensure equal access to offered goods, privileges, services or facilities.

(2) Places of public accommodation are not required to provide auxiliary aids that would result in significant difficulty or expense, or in a fundamental alteration in the nature of the offered goods, privileges or services. This is to be determined on a case-by-case basis.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 & ORS 659A.142
Hist.: BL 10-1996, f. & cert. ef. 12-4-96; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02

839-006-0330

Removal of Barriers to Goods and Services

(1) Places of public accommodation must remove physical and administrative barriers, if readily achievable (as defined in OAR 839-006-0310) in order to make offered goods and services accessible.

(2) If barrier removal is not readily achievable, places of public accommodation must take alternative steps to make offered goods and services accessible, such as providing goods and services at the door, sidewalk or curb; providing home delivery; retrieving merchandise from inaccessible shelves or racks; relocating activities to accessible locations; or relaxing administrative policies.

(3) Places of public accommodation may not impose charges on individuals with disabilities to recover costs of barrier removal.

(4) Removal of physical or administrative barriers that would result in significant difficulty or expense or in a fundamental alteration in the nature of the offered goods or services is not required and is to be determined on a case-by-case basis.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 & 659A.142
Hist.: BL 10-1996, f. & cert. ef. 12-4-96; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08; BLI 8-2010, f. & cert. ef. 2-24-10

839-006-0332 [Renumbered to 839-006-0350]

839-006-0335

Direct Threat

(1) Notwithstanding other provisions of these rules, places of public accommodation may refuse to permit an individual with a disability to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of the public accommodation if the individual with a disability poses a direct threat to the health or safety of others. Direct threat means significant risk of substantial harm that cannot be eliminated or reduced below the level of significant risk of substantial harm by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services.

(2) In determining whether an individual with a disability poses a direct threat to the health or safety of others, places of public accommodation must make an individualized assessment, based on reasonable judgment that relies on the most current medical knowledge, or on the best available objective evidence, to ascertain:

(a) The duration of risk;

(b) The nature and severity of potential harm;

(c) The likelihood that potential harm will occur;

(d) The imminence of potential harm; and

(e) Whether reasonable modifications of policies, practices or procedures will mitigate the risk.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 & 659A.142
Hist.: BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08; BLI 8-2010, f. & cert. ef. 2-24-10

839-006-0340

Discrimination Theories: Discrimination Against Individuals with Disabilities by State Government or Places of Public Accommodation

(1) A violation of discrimination laws against individuals with disabilities may involve either intentional or unintentional discrimination. Discrimination against individuals with disabilities need not be intentional to be unlawful. Unintentional discrimination may occur, for example, in situations involving adverse impact. To be protected from discrimination based on disability, an individual must have a disability, as defined in ORS 659A.104 and the relevant rules.

(2) Substantial evidence of intentional unlawful discrimination against an individual exists if the investigation of the Civil Rights Division (“division”) reveals evidence that a reasonable person would accept as sufficient to support the following elements:

(a) The respondent is a respondent as defined by ORS 659A.001(10) and OAR 839-005-0003(12) of these rules;

(b) The individual has a disability;

(c) The individual was harmed by an action of the respondent; and

(d) The individual’s disability was the motivating factor for the respondent’s action. In determining whether the individual’s disability was the motivating factor for the respondent’s action, the division uses whichever of the following theories applies:

(A) Specific Intent Theory: The respondent knowingly and purposefully discriminates against an individual because that individual has a disability.

(B) Different or Unequal Treatment Theory: The respondent treats individuals with disabilities differently than others who do not have disabilities. When the respondent makes this differentiation because of the individual’s disability and not because of legitimate, non-discriminatory reasons, unlawful discrimination exists. In establishing a case of different or unequal treatment:

(i) There must be substantial evidence that the individual was harmed by an action of the respondent under circumstances that make it appear that the respondent treated the individual differently than comparably situated individuals who do not have disabilities. Substantial evidence of discrimination exists if the division’s investigation reveals evidence that a reasonable person would accept as sufficient to support that an individual’s disability was a motivating factor for the respondent’s alleged unlawful action. If the respondent fails to rebut this evidence with evidence of a legitimate non-discriminatory reason, the division will conclude that substantial evidence of unlawful discrimination exists.

(I) Pretext: If the respondent rebuts the evidence with evidence of a legitimate non-discriminatory reason, but there is substantial evidence that the respondent’s reason is a pretext for discrimination, the division will conclude there is substantial evidence of unlawful discrimination.

(II) Mixed Motive: If the respondent presents substantial evidence that a legitimate, non-discriminatory reason contributed to the respondent’s action, but the division finds the individual’s disability was also a substantial factor in the respondent’s action, the division will determine there is substantial evidence of discrimination.

(ii) The individual with a disability at all times has the burden of proving that the individual’s disability was the motivating factor for the respondent’s unlawful action.

(3) Adverse impact by a place of public accommodation or by state government on the basis of disability: Substantial evidence of adverse impact discrimination does not require establishment of intentional discrimination as provided in (2) of this rule. Adverse impact discrimination exists if the division’s investigation reveals evidence that a reasonable person would accept as sufficient to support the following elements:

(a) The respondent is a respondent as defined by ORS 659A.001(10) and OAR 839-005-0003(12) of these rules;

(b) The respondent has a standard or policy that is applied equally.

(c) The standard or policy has the effect of screening out or otherwise affecting members of a protected class at a significantly higher rate than others who are not members of that protected class; and

(d) The complainant is a member of the protected class adversely affected by the respondent’s standard or policy and has been harmed by the respondent’s application of the standard or policy.

(4) Harassment by a place of public accommodation or by state government on the basis of disability:

(a) Conduct of a verbal or physical nature on the basis of disability is unlawful when substantial evidence of the elements of intentional discrimination, as described in section (2) of this rule, is shown and:

(A) Such conduct is sufficiently severe or pervasive to have the purpose or effect of creating an intimidating, hostile or offensive environment; or

(B) Submission to such conduct is made either explicitly or implicitly a term or condition of receiving services, accommodations, advantages, facilities or privileges from a place of public accommodation or services, programs or activities of state government; or

(C) Submission to or rejection of such conduct is used as the basis for decisions affecting that individual.

(b) The standard for determining whether harassment is sufficiently severe or pervasive to create a hostile, intimidating or offensive environment is whether a reasonable person in the circumstances of the individual against whom the harassment is directed would so perceive it.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 & 659A.142
Hist.: BLI 8-2010, f. & cert. ef. 2-24-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; Renumbered from 839-006-0307 by BLI 15-2013, f. & cert. ef 12-30-13

839-006-0345

Assistance Animals in Places of Public Accommodation or Access to State Government

(1) “Assistance animal” means a dog or other animal designated by administrative rule that has been individually trained to do work or perform tasks for the benefit of an individual.

(2) “Assistance animal trainee” means an animal that is undergoing a course of development and training to do work or perform tasks for the benefit of an individual that directly relate to the disability of the individual.

(3) “Assistance animal trainer” means an individual exercising care, custody and control over an assistance animal trainee during a course of training designed to develop the trainee into an assistance animal.

(4) A place of public accommodation or of access to state government services, programs or activities may not:

(a) Ask an individual about the nature or extent of a disability that the individual has or may have;

(b) Require an individual to provide documentation proving that an animal is an assistance animal or an assistance animal trainee; or

(c) Notwithstanding any fee or admission charge imposed for pets, require that a person with a disability or an assistance animal trainer pay a fee or admission charge for an assistance animal or assistance animal trainee.

(5) A place of public accommodation or of access to state government services, programs or activities may:

(a) Ask whether an animal is required due to a disability; and

(b) Ask about the nature of the work or task that an animal is trained to do or perform or is being trained to do or perform, unless it is readily apparent that the animal performs or is being trained to perform work or a task for the benefit of a person with a disability.

(6) If a place of public accommodation or of access to state government services, programs or activities customarily charges a person for damages that the person causes to the place, the place may charge a person with a disability or an assistance animal trainer for damages that an assistance animal or assistance animal trainee causes to the place.

(7) A person with a disability or an assistance animal trainer must maintain control of an assistance animal or assistance animal trainee.

(a) Except as provided in this subsection, control shall be exerted by means of a harness, leash or other tether.

(b) If the use of a harness, leash or other tether would interfere with the ability of the animal to do the work or perform the tasks for which the animal is trained or is being trained, control may be exerted by the effective use of voice commands, signals or other means.

(c) If an animal is not under control as required in this subsection, a place of public accommodation or of access to state government services, programs or activities may consider the animal to be out of control for purposes of subsection (8) of this section.

(8)(a) Except as provided in this subsection, a place of public accommodation or of access to state government services, programs or activities may not deny a person with a disability or an assistance animal trainer the right to be accompanied by an assistance animal or assistance animal trainee in any area of the place that is open to the public or to business invitees.

(b) A place of public accommodation or of access to state government services, programs or activities may require a person with a disability or an assistance animal trainer to remove an assistance animal or assistance animal trainee if:

(A) The animal is not housebroken; or

(B) The animal is out of control and effective action is not taken to control the animal.

(c) A place of public accommodation or of access to state government services, programs or activities may impose legitimate requirements necessary for the safe operations of the place of public accommodation or the services, programs or activities. The place of public accommodation or of access to state government services, programs or activities shall ensure that the safety requirements are based on actual risks, not on speculation, stereotypes or generalizations about persons with disabilities.

(9) A place of public accommodation or of access to state government services, programs or activities shall make reasonable modifications as necessary to allow an opportunity for a person with a disability who is benefited by the use of an assistance animal to obtain goods, services and the use of the advantages, facilities and privileges of the place or the advantages, facilities and privileges of the state government services, programs or activities. For purposes of this subsection, except as provided in subsections (5) and (7) of this section, in addition to any other applicable accommodation requirement, allowing the presence of the assistance animal is a reasonable modification.

(10) If a place of public accommodation or of access to state government services, programs or activities requires a person with a disability to remove an assistance animal under subsection (8) of this section, the place or state government shall give the person with a disability a reasonable opportunity to obtain goods, services and the use of the advantages, facilities and privileges of the place or the advantages, facilities and privileges of the state government services, programs or activities without the assistance animal's presence.

(11) A place of public accommodation or of access to state government services, programs or activities is not required to provide care or supervision for an assistance animal or assistance animal trainee.

(12) The protection granted under this section to a person with a disability or an assistance animal trainer does not invalidate or limit the remedies, rights and procedures of any other federal, state or local laws that provide equal or greater protection of the rights of a person with a disability, an assistance animal trainer or individuals associated with a person with a disability.

Stat. Auth.: ORS 659A.805
Stats. Implemented: SB 610, 77th Leg., Reg. Session (Or. 2013)
Hist.: BLI 15-2013, f. & cert. ef 12-30-13

Requirements for Transient Lodging

839-006-0350

Lift Systems for Transient Lodging

(1) A transient lodging provider shall ensure that in transient lodging facilities of 175 or more rooms or suite of rooms that at least one room or suite of rooms has a lift system or multiple lift systems that enable an individual with a disability to access a bed, a toilet, and a shower or bathtub in the room or suite of rooms occupied by the individual with a disability.

(a) “Lift system” means a system that:

(A) Is used to transfer a person to a bed, toilet, shower or bathtub, but does not provide the individual with independent mobility;

(B) May be a manual lift, an electronic lift or a lift that uses a track system; and

(C) May require operation by an assistant.

(b) “Transient lodging” means a unit consisting of a room or suite of rooms that: (A) Is not occupied as a principal residence;

(B) Is typically occupied for a period of fewer than 30 consecutive days; and

(C) Includes services that are part of the regularly charged cost of occupancy, including maid and linen services.

(2) Additional information regarding the requirement described in section (3) of this rule is available at ORS 659A.144.

(3) Any violation of section (1) of this rule or of the authorizing statutes is an unlawful practice.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.144
Hist.: BLI 9-2010, f. & cert. ef. 2-24-10; Renumbered from 839-006-0332 by BLI 15-2013, f. & cert. ef 12-30-13

Veterans’ Preference in Public Employment

839-006-0435

Veterans’ Preference in Public Employment

(1) It is the policy of the State of Oregon that a public employer grant a preference in hiring and promotion to veterans and disabled veterans under the provisions of ORS 408.230.

(2) The requirement to grant a preference in hiring and promotion to veterans and disabled veterans under the provisions of ORS 408.230 applies only to a public employer’s civil service positions.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 408.230, 408.235
Hist.: BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08; BLI 8-2010, f. & cert. ef. 2-24-10

839-006-0440

Definitions

(1) “Active duty” does not include attendance at a school under military orders, except schooling incident to an active enlistment or a regular tour of duty, or normal military training as a reserve officer or member of an organized reserve or a National Guard unit.

(2) “Armed Forces” means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof. (Title 38 USC Part I Chapter 1 Section 101). Reserve components mean:

(a) The Army Reserve;

(b) The Navy Reserve;

(c) The Marine Corps Reserve;

(d) The Air force Reserve;

(e) The Coast Guard Reserve;

(f) The Army National Guard of the United States; and

(g) The Air National Guard of the United States.

(3) “Civil service position” means any position for which a hiring or promotion decision is made or required to be made based on the results of a merit based, competitive process that includes, but is not limited to, consideration of an applicant’s or employee’s relative ability, knowledge, experience and other skills.

(a) A “civil service” position need not be labeled a “civil service position.”

(4) “Combat zone” means an area designated by the President of the United States by executive order in which, on the dates designated by executive order, the Armed Forces of the United States are or have engaged in combat.

(5) “Disabled veteran” means a person who has a disability rating from the United States Department of Veterans Affairs, a person whose discharge or release from active duty was for a disability incurred or aggravated in the line of duty or a person who was awarded the Purple Heart for wounds received in combat.

(6) “Eligibility list” means a list of ranked eligible candidates for a civil service position who have become eligible for the position through a test or series of tests and who will be considered for the civil service position in ranked order. Rankings of eligible candidates identified as tiers, bands or other names function as eligibility lists for purposes of these rules.

(7) “Military leave” means any period of time for which a person is absent from a permanent civil service position for the performance of active duty in the Armed Forces of the United States.

(8) “Promotion” means any position with a higher maximum salary rate.

(9) “Public employer” includes a public body as defined in ORS 174.109, and any person authorized to act on behalf of the public body, with respect to control, management or supervision of any employee. “Public employer” includes but is not limited to:

(a) Employers in local governments;

(b) Employers in a public corporation created under a statute of this state and specifically designated as a public corporation; and

(c) Employers in any public body that is created by statute, ordinance or resolution that is not part of state government or local government.

(10) “Transferable skill” means a skill that a veteran has obtained through military education or experience that substantially relates, directly or indirectly, to the civil service position for which the veteran is applying.

(11) “Veteran” means a person who:

(a) Served on active duty with the Armed Forces of the United States:

(B) For a period of more than 90 consecutive days beginning on or before January 31, 1955, and was discharged or released under honorable conditions;

(C) For a period of more than 178 consecutive days beginning after January 31, 1955, and was discharged or released from active duty under honorable conditions;

(D) For 178 days or less and was discharged or released from active duty under honorable conditions because of a service-connected disability;

(E) For 178 days or less and was discharged or released from active duty under honorable conditions and has a disability rating from the United States Department of Veterans Affairs; or

(F) For at least one day in a combat zone and was discharged or released from active duty under honorable conditions;

(b) Received a combat or campaign ribbon or an expeditionary medal for service in the Armed Forces of the United States and was discharged or released from active duty under honorable conditions; or

(c) Is receiving a nonservice-connected pension from the United States Department of Veterans Affairs.

(d) For questions regarding military discharge, consult the Oregon Department of Veterans’ Affairs website at <http://www.oregon.gov/ODVA/docs/PDFs/Criminal_Justice_Portal/Military_discharge.pdf?ga=t>.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 408.225, 408.230, 408.235, OL 2011, Ch 484, OL 2011, Ch 29
Hist.: BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2011, f. 12-30-11, cert. ef. 1-1-12; BLI 2-2012, f. & cert. ef. 2-8-12

839-006-0445

Eligibility for Employment Preference

(1) A veteran is eligible to use the preference provided for in OAR 839-006-0450 and 839-006-0455 for a civil service position for which application is made at any time after discharge or release from service in the Armed Forces of the United States.

(2) Except as provided in (1) of this rule there are no limitations to the number of times a person can claim the preference.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 408.230, 408.235
Hist.: BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08; BLI 8-2010, f. & cert. ef. 2-24-10

839-006-0450

Applying the Employment Preference

(1) A public employer shall grant a preference to a veteran or disabled veteran who applies for a vacant civil service position or who seeks promotion to a civil service position with a higher maximum salary rate and who:

(a) Successfully completes an initial application screening or an application examination for the position; or

(b) Successfully completes a civil service test the employer administers to establish eligibility for the position; and

(c) Meets the minimum qualifications and any special qualifications for the position.

(2) At each stage of the application process a public employer will grant a preference to a veteran or disabled veteran who successfully completes an initial application screening or an application examination or a civil service test the public employer administers to establish eligibility for a vacant civil service position.

(3) For an initial application screening used to develop a list of persons for interviews, the public employer will add five preference points to a veteran’s score and ten preference points to a disabled veteran’s score.

(4) For an application examination, given after the initial application screening, that results in a score, the public employer will add five preference points to a veteran’s and ten preference points to a disabled veteran’s total combined examination score without allocating the points to any single feature or part of the examination.

(5) If a public employer uses an application examination that consists of an evaluation method of ranking an applicant that does not result in a score, the public employer will devise and apply methods by which the public employer gives special consideration in the public employer’s hiring decision to veterans and disabled veterans.

(6) When an interview is a component of the selection process for a civil service position or for an eligibility list for a civil service position, a public employer shall interview each veteran:

(a) Whom the public employer determines meets the minimum qualifications and special qualifications for the civil service position or eligibility list; and

(b) Who submits application materials that the public employer determines show sufficient evidence that the veteran has the transferable skills required and requested by the public employer for the civil service position or eligibility list.

(7) A public employer is not required to comply with subsection (6) of this rule if the employer’s practice is to generate an eligibility list without conducting interviews of possible candidates.

(8) A public employer may consult with the Oregon Military Department and the Department of Veterans’ Affairs to determine whether certain military education or experience produces a transferable skill. To evaluate a veteran’s transferable skills from a transcript of military training, a public employer may consult the American Council on Education’s website, “A Guide to the Evaluation of Educational Experiences in the Armed Services,” at http://www.acenet.edu/news-room/Pages/Military-Guide-Online.aspx

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 408.230, 408.235 & 408.237
Hist.: BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2011, f. 12-30-11, cert. ef. 1-1-12; BLI 2-2012, f. & cert. ef. 2-8-12; BLI 4-2013(Temp), f. 12-15-13, cert. ef. 12-16-13 thru 6-1-14; BLI 2-2014(Temp), f. 2-18-14, cert. ef. 2-19-14 thru 6-1-14; BLI 7-2014, f. & cert. ef. 5-30-14

839-006-0455

Employment Preference for Promotions

A public employer will grant a preference to a person seeking promotion in the manner described at OAR 839-006-0450.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 408.225, 408.230, 408.235, OL 2011, Ch 484
Hist.: BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; BLI 15-2011, f. 12-30-11, cert. ef. 1-1-12; ; BLI 2-2012, f. & cert. ef. 2-8-12

839-006-0460

Appointment to a Position

(1) A public employer will appoint an otherwise qualified veteran or disabled veteran to a vacant civil service position if the results of a veteran’s or disabled veteran’s application examination, when combined with the veteran’s or disabled veteran’s preference, are equal to or higher than the results of an application examination for an applicant who is not a veteran or disabled veteran.

(2) Preferences of the type described in OAR 839-006-0450 and 839-006-0455 are not a requirement that a public employer appoint a veteran or disabled veteran to a civil service position.

(3) A public employer may base a decision not to appoint the veteran or disabled veteran solely on the veteran’s or disabled veteran’s merits or qualifications with respect to the vacant civil service position.

(4) If a public employer does not appoint a veteran or disabled veteran to a vacant civil service position, upon written request of the veteran or disabled veteran, the public employer, will provide the public employer’s reasons for the decision not to appoint the veteran or disabled veteran to the position.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 408.230, 408.235
Hist.: BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08; BLI 8-2010, f. & cert. ef. 2-24-10

839-006-0465

Certification

(1) A public employer may require an applicant to provide certification that the person is an eligible veteran or disabled veteran under OAR 839-006-0440(5) and (9).

(2) An applicant for a position with a public employer claiming veteran's or disabled veteran’s preference points may submit as certification of eligibility under OAR 839-006-0440(5) and (9) a copy of the Certificate of Release or Discharge from Active Duty (a federal DD Form 214 or 215) with the application for employment.

(3) Disabled veterans may also submit a copy of their veteran's disability preference letter from the U.S. Department of Veterans Affairs, unless the information is included in the federal DD Form 214/215.

(4) If a person’s record appears to show service qualifying for the preference the public employer may provisionally designate an applicant as an eligible veteran or disabled veteran. However, before the person can be appointed, the person must submit proof of the entitlement to the preference.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 408.225, 408.230, 408.235
Hist.: BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08; BLI 8-2010, f. & cert. ef. 2-24-10

839-006-0470

Enforcement

The Civil Rights Division of the Bureau of Labor and Industries enforces the provisions of ORS 408.230. A person claiming a violation of ORS 408.230 may file a verified written complaint with the Civil Rights Division in accordance with ORS 659A.820.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 408.230, 408.235, 659A.820, OL 2011, Ch 484
Hist.: BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2011, f. 12-30-11, cert. ef. 1-1-12; BLI 2-2012, f. & cert. ef. 2-8-12

Discrimination Based on Uniformed Services

839-006-0480

Discrimination Based on Uniformed Service

(1) For purposes of this rule:

(a) “Service” means the performance of duty on a voluntary or involuntary basis in a uniformed service that may involve active duty, active duty for training, initial active duty for training, inactive duty for training, full time duty in the National Guard, funeral honors duty or an examination to determine fitness for service in a uniformed service; and

(b) “Uniformed service” means the Armed Forces of the United States, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training or full-time National Guard duty, the commissioned corps of the United States Public Health Service and any other category of persons designated by the President of the United States in a time of war or national emergency.

(2) It is an unlawful employment practice for an employer to discriminate against a person because of the person’s service in a uniformed service by:

(a) Denying a public officer or public employee the status or rights provided by ORS 408.240 to 408.240 and 408.290, if the employer is a public body.

(b) Discharging, expelling, disciplining, threatening or otherwise retaliating against the person for exercising or attempting to exercise the status or rights provided by this section.

(c) Denying any of the following because a person is a member of, applies to be a member of, performs, has performed, applies to perform or has an obligation to perform service in a uniformed service:

(A) Initial employment;

(B) Reemployment following a leave from employment taken by reason of service in a uniformed service;

(C) Retention in employment;

(D) Promotion; or

(E) Any other term, condition or privilege of employment, including but not limited to compensation.

(3) An employer does not commit an unlawful employment practice under this rule if the employer acted based on a bona fide occupational requirement reasonably necessary to the normal operation of the employer’s business and the employer’s actions could not be avoided by making a reasonable accommodation of the person’s service in a uniformed service.

(4) The federal Uniformed Services Employment and Reemployment Act, 38 USC 43 (USERRA) provides that an employee reemployed following a period of uniformed service is entitled to the seniority and seniority-based rights and benefits that the employee had on the date the uniformed service began, plus any seniority and seniority-based rights and benefits that the employee would have attained if the employee had remained continuously employed. Federal Department of Labor regulation 20 CFR 1002.210 provides that in determining entitlement to seniority and seniority-based rights and benefits, the period of absence from employment due to or necessitated by uniformed service is not considered a break in employment. The rights and benefits protected by USERRA upon reemployment include those provided by the employer and those required by statute.

(5) To the extent possible, this rule shall be construed in a manner that is consistent with similar provisions of the federal Uniformed Services Employment and Reemployment Rights Act of 1994, 38 USC 43.

(6) Protections for spouses and domestic partners of uniformed service members may be found under the Oregon Family Military Leave Act, ORS 659A.090 to 659A.099 and OAR 839-009-0370 - 839-009-0460.

Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.082, OL 2011, Ch 18
Hist.: BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2011, f. 12-30-11, cert. ef. 1-1-12; BLI 2-2012, f. & cert. ef. 2-8-12

The official copy of an Oregon Administrative Rule is contained in the Administrative Order filed at the Archives Division, 800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the published version are satisfied in favor of the Administrative Order. The Oregon Administrative Rules and the Oregon Bulletin are copyrighted by the Oregon Secretary of State. Terms and Conditions of Use

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