Oregon provides certain rights to employees who are injured on the job. Most Oregon employers are prohibited from discriminating against employees because of such injuries. ORS 659A.040. In addition, many Oregon employers must return injured workers to their former positions when they are able to perform them. ORS 659A.043. Even more employers have an obligation to return employees to suitable positions when they are not able to perform their former jobs but can still perform some positions. ORS 659A.046. Q. Does an employee have to actually file a workers´ compensation claim in order to be covered under the anti-discrimination provisions of the law?
A. No. It is sufficient if an employee just talks about filing a claim, participates in another worker´s claim, or simply informs the employer of an on-the-job injury or the employer is informed of the on-the-job injury by the employee or co-worker. Q. When an employee returns to full duty after suffering an on-the-job injury, am I required to return the employee to the position held at the time of injury?
A. If you have 21 or more employees both at the time of injury and at the time of demand, you must reinstate the injured worker to the former position if the worker is able to perform the required duties and has made a timely demand for the job. "Timely demand" is defined as no later than seven calendar days from the date the worker is notified by certified mail by the insurer or self-insured employer that the worker´s attending physician has released the worker for employment. Demand may be made by the injured worker, the injured worker´s attorney or the workers´ compensation insurance carrier. Extenuating circumstances may, in very rare instances, extend the requirement for timely demand. Q. Can I require medical evidence of the employee´s ability to return to the former position?
A. Yes. Although the attending physician´s approval is prima facie evidence, 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 job. The employer may also consult the worker´s physician. NOTE
: If the employee is also taking family medical leave, different rules may apply for contacting the physician. Call Technical Assistance at (971) 673-0824 for more information. Q. What if the employee´s former job no longer exists?
A. If the former position has been eliminated for bona fide business reasons, the employer does not have to create a job or resurrect the old job but must offer the worker a suitable vacant job (reemployment). Q. What does "suitable" mean?
A. A suitable position is one that is substantially similar to the former position in compensation, duties, skills, location, duration (full or part-time, temporary or permanent) and shift. NOTE
: Compensation means the same that you would pay others of the same education, skill and seniority to do that job. Location means in Oregon and within a reasonable commuting distance, unless the former job site is no longer in operation, the nature of the employer´s business routinely involves the transfer of employees, or the employer and employee agree on a job outside of Oregon. Q. What if the worker is able to return to work, but is unable to perform the former duties?
A. As long as you employ six or more persons, you have an obligation to reemploy the worker to the most suitable vacant position available. NOTE
: Under state and federal discrimination statutes, you may also have an obligation to reasonably accommodate a worker if disabled. Call Technical Assistance for more information. Q. Are there any situations in which the obligation to reinstate or reemploy an injured worker would not apply?
A. Reemployment and reinstatement rights are subject to the provisions of a valid collective bargaining agreement. For instance, a collective bargaining agreement may provide that workers lose seniority after a period of time away from work, which could affect the worker´s right to return to a particular job. However, the basic right to reemployment or reinstatement always applies. Q. What about the worker who is partially released and then recovers to the point where he or she can perform regular duties?
A. If the request for reinstatement to the former job is made within three years of the original injury, the employer is still obligated to return the worker to the original job, even if that job is currently being performed by someone else. Q. Does an injured worker ever lose reinstatement/ reemployment rights?
A. A worker loses the right to reinstatement/re-employment if any of the following occurs
- The worker is determined to be medically stationary and not physically able to return to the former position (for loss of reinstatement rights) or to any position (for loss of reemployment rights)
- The worker is eligible for and participates in vocational assistance under ORS 656.340.
- The worker accepts suitable employment with another employer after becoming medically stationary.
- The worker refuses a bona fide offer of suitable light duty or modified employment from the employer before becoming medically stationary.
- Demand for reinstatement is not made by the worker within seven days from the date the worker is notified by the insurer or self-insured employer by certified mail that the worker´s attending physician has released the worker to the former position (for loss of reinstatement rights) or for reemployment (for loss of reemployment rights).
- Three years have elapsed since the date of the worker´s original injury.
- The employer discharges the worker for reasons not connected with the injury and for which others are or would be discharged.
- The worker clearly abandons future employment with the employer.
- The worker does not report to work as specified in the employer´s suitable job offer.
Q. May I discipline an employee who has excessive absences due to an on-the-job injury?
A. No. As long as the workers´ compensation claim is compensable, the employer may not discipline the employee for any absences that are related to that claim.
Q. If an employee´s injury requires the employee to be off work for a period of time, must I continue to pay the employee´s group health insurance benefits?
A. If the employee is employed by the State of Oregon, the state must continue to pay the employee´s group health benefits. In all other cases, the employer must pay the benefits if that is what the employer does for other employees. In no instance may an employer provide fewer benefits for an injured worker than for other similarly situated employees.
NOTE: If the employee is also taking family leave, different requirements may apply for continuing health insurance. Call Technical Assistance for further information.
Q. I have a policy which provides that anybody who is gone from work for 30 days or more is automatically terminated. Can I terminate an injured worker under this policy?
A. You may, but the worker still retains reinstatement/reemployment rights.
Nothing on this website is intended as legal advice. Any responses to specific questions are based on the facts as we understand them, and not intended to apply to any other situations. This communication is not an agency order. If you need legal advice, please consult an attorney. We attempt to update the information on this website as soon as practicable following changes or developments in the laws and rules affecting Oregon employers, but we make no warranties or representations, express or implied, about whether the information provided is current. We urge you to check the applicable statutes and administrative rules yourself and to consult with legal counsel prior to taking action that may invoke employee rights or employer responsibilities or omitting to act when required by law to act.
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