2017 ORS 659A.043¹
Reinstatement of injured worker to former position
  • certificate evidencing ability to work
  • effect of collective bargaining agreement
  • termination of right to reinstatement
  • when reinstatement right terminates

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

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

(3) Notwithstanding subsection (1) of this section:

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

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

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

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

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

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

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

(b) The right to reinstatement under this section does not apply to:

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

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

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

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

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

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

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

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

(formerly 659.280 to 659.290)

Law Review Cita­tions

26 WLR 394-395 (1990)

Notes of Decisions

Termina­tion of employ­ment in retalia­tion for invoking Oregon Family Leave Act rights constitutes wrongful discharge in viola­tion of public policy. Yeager v. Providence Health System Oregon, 195 Or App 134, 96 P3d 862 (2004), Sup Ct review denied

(formerly 659.415)

Notes of Decisions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Atty. Gen. Opinions

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

Law Review Cita­tions

27 WLR 106 (1991)

1 Legislative Counsel Committee, CHAPTER 659A—Unlawful Discrimination in Employment, Public Accommodations and Real Property Transactions; Administrative and Civil Enforcement, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors659A.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 659A, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano659A.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.