839-006-0130 Injured Workers: 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. Statutory/Other Authority: ORS 659A.805 Statutes/Other Implemented: ORS 659A.043 History: BLI 43-2007, f. 12-31-07, cert. ef. 1-1-08 BLI 10-2002, f. & cert. ef. 5-17-02 BLI 15-2000, f. & cert. ef. 8-11-00 BL 2-1998, f. & cert. ef. 2-3-98 BL 10-1996, f. & cert. ef. 12-4-96 BL 4-1996, f. & cert. ef. 3-12-96 BL 3-1991, f. 2-12-91, cert. ef. 2-15-91 BL 13-1990(Temp), f. & cert. ef. 9-4-90 BL 3-1986, f. & ef. 4-7-86 BL 1-1983, f. & ef. 1-26-83