839-006-0205 Disability and Employment Rights: 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. Statutory/Other Authority: ORS 659A.805 Statutes/Other Implemented: ORS 659A.103 - 659A.142, H.B. 2111, 77th Leg. & Reg. Session (Or. 2013) History: BLI 15-2013, f. & cert. ef 12-30-13 BLI 8-2010, f. & cert. ef. 2-24-10 BLI 4-2007, f. 1-29-07, cert. ef. 2-1-07 BLI 9-2006, f. 3-16-06, cert. ef. 3-20-06 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 4-1996, f. & cert. ef. 3-12-96 BL 15-1990, f. 10-29-90, cert. ef. 11-1-90 BL 2-1984, f. & ef. 1-31-84