2017 ORS 659A.046¹
Reemployment of injured worker in other available and suitable work
  • termination of right to reemployment
  • effect of collective bargaining agreement

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

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

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

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

(b) The worker is eligible and participates in vocational assistance under ORS 656.340 (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 reemployment unless the worker requests reemployment within that time period.

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

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

(5) Notwithstanding ORS 659A.165 (Notice to employer), a worker who refuses an offer of employment under subsection (3)(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.

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

(7) This section applies only to employers who employ six or more persons. [Formerly 659.420; 2003 c.811 §§23,24; 2007 c.365 §12; 2007 c.633 §§6,7]

(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 659.420)

Notes of Decisions

Employer’s duty under this sec­tion expired once it had offered suitable posi­tion to injured worker. Carney v. Guard Publishing Co., 48 Or App 147, 616 P2d 548 (1980), Sup Ct review denied, as modified by 48 Or App 927, 630 P2d 867 (1980)

Community Service Officer posi­tion, though not equivalent to deputy sheriff posi­tion, was “available and suitable” and once posi­tion was offered duties pursuant to this sec­tion expired. Blumhagen v. Clackamas County, 91 Or App 510, 756 P2d 650 (1988), Sup Ct review denied

Bureau of Labor and Industries rule provides practical interpreta­tion of statutory term “suitable.” Robinson v. School District No. 1, 92 Or App 627, 759 P2d 1116 (1988)

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

Statute of limita­tions begins to run under this sec­tion when worker who has made demand in accordance with administrative scheme knows or should know that work is available and suitable. Kraxberger v. Chevron USA, Inc., 118 Or App 686, 848 P2d 1242 (1993)

“Employ­ment” and “work” refer to specific posi­tion or job, not entire profession or job classifica­tion. Anglin v. Dept. of Correc­tions, 160 Or App 463, 982 P2d 547 (1999), Sup Ct review denied

For purpose of determining date on which right to reemploy­ment terminates, date of injury is date on which worker suffered compensable injury that triggers right to reemploy­ment. 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)

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.