659A.043
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 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.
(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 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, 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 to 659A.186:
(a) Automatically
commences a period of family leave under ORS 659A.150 to 659A.186 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]
Notes of Decisions
Petock v. Asante, 268 P.3d 579 (Or. 2011).
· cites it 30× “On review, plaintiff argues primarily that the Court of Appeals erred in holding that an aggravation of an earlier injury cannot give rise to a right to reinstatement under ORS 659A.043 or a right to reemployment under ORS 659A.”
Anderson v. Hibu, Inc., 26 F. Supp. 3d 1019 (D. Or. 2014).
· cites it 32× “040(1) because plaintiff invoked the workers’ compensation system and (2) whether plaintiffs right to reinstatement under ORS § 659A.043 was violated because defendant made it known to her that reinstatement would not be considered and that an actual demand would therefore be…”
Hamlin v. Hampton Lumber Mills, Inc., 193 P.3d 46 (Or. Ct. App. 2008).
· cites it 8× “Express learned that temporary employees, such as plaintiff, generally had reinstatement rights under ORS 659A.043. Express communicated that information to Blackwell, the human resources manager for the mill.”
Petock v. Asante, 240 P.3d 56 (Or. Ct. App. 2010).
· cites it 15× “1 In her first claim, plaintiff alleged that defendant *117 “failed and refused to reinstate plaintiff into her former position in violation of ORS 659A.043 * * That statute provides, in part: “(1) A worker who has sustained a compensable injury shall be reinstated by the…”
Williams v. Freightliner, LLC, 100 P.3d 1117 (Or. Ct. App. 2004).
· cites it 4× “ORS 659A.043 provides, in part, that “[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…”
Chase v. Vernam, 110 P.3d 128 (Or. Ct. App. 2005).
· cites it 3× “109; ORS 659A.043; ORS 659A.885(1). 2 Because the amount requested in plaintiffs complaint was less than $25,000, the action was subject to mandatory arbitration.”
Evergreen West Bus. Ctr., LLC v. Emmert, 296 P.3d 545 (Or. Ct. App. 2012).
· cites it 2× “In Hamlin , the jury had awarded $6,000 in lost wages and $175,000 in punitive damages to a plaintiff who alleged that his employer had refused to reinstate him after he suffered an injury at work, thereby violating ORS 659A.043. This court, employing a 4-to-l ratio, reduced the…”
Lithia Medford LM, Inc. v. Yovan, 295 P.3d 642 (Or. Ct. App. 2012).
· cites it 3× “He alleged that his employer had violated ORS 659A.043, which provides rights to reinstatement for injured employees, and the jury awarded Hamlin $6,000 in lost wages and $175,000 in punitive damages.”
Reddy v. Cascade Gen., Inc., 206 P.3d 1070 (Or. Ct. App. 2009).
· cites it 2× “” As support for that position, defendant invoked Oregon statutes, specifically ORS 659A.043 and ORS 659A.046, which pertain to reinstatement remedies for workers who have sustained compensable injuries.”
Schoen v. Freightliner LLC, 199 P.3d 332 (Or. Ct. App. 2008).
“” ORS 659A.043 and ORS 659A.046 provide remedies for failure to reinstate or reemploy a worker who has sustained a compensable injury.”
Reames v. AB Car Rental Servs., Inc., 899 F. Supp. 2d 1012 (D. Or. 2012).
· cites it 2× “§§ 659A.043 and 659A.046. On the face of the complaint, plaintiff seeks lost wages and benefits in an amount of $11,627, future lost wages and benefits in an amount of $11, 267, and non-economic damages in an amount of $25,000.”
— Or. Rev. Stat. § 659A.043(1) — 7 cases
Petock v. Asante, 268 P.3d 579 (Or. 2011).
“On review, plaintiff argues primarily that the Court of Appeals erred in holding that an aggravation of an earlier injury cannot give rise to a right to reinstatement under ORS 659A.043 or a right to reemployment under ORS 659A.”
Williams v. Freightliner, LLC, 100 P.3d 1117 (Or. Ct. App. 2004).
“ORS 659A.043 provides, in part, that “[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…”
Hamlin v. Hampton Lumber Mills, Inc., 193 P.3d 46 (Or. Ct. App. 2008).
“Express learned that temporary employees, such as plaintiff, generally had reinstatement rights under ORS 659A.043. Express communicated that information to Blackwell, the human resources manager for the mill.”
Anderson v. Hibu, Inc., 26 F. Supp. 3d 1019 (D. Or. 2014).
“040(1) because plaintiff invoked the workers’ compensation system and (2) whether plaintiffs right to reinstatement under ORS § 659A.043 was violated because defendant made it known to her that reinstatement would not be considered and that an actual demand would therefore be…”
— Or. Rev. Stat. § 659A.043(2) — 1 case
— Or. Rev. Stat. § 659A.043(3)(E) — 1 case
Anderson v. Hibu, Inc., 26 F. Supp. 3d 1019 (D. Or. 2014).
“040(1) because plaintiff invoked the workers’ compensation system and (2) whether plaintiffs right to reinstatement under ORS § 659A.043 was violated because defendant made it known to her that reinstatement would not be considered and that an actual demand would therefore be…”
— Or. Rev. Stat. § 659A.043(3)(a) — 2 cases
Petock v. Asante, 268 P.3d 579 (Or. 2011).
“On review, plaintiff argues primarily that the Court of Appeals erred in holding that an aggravation of an earlier injury cannot give rise to a right to reinstatement under ORS 659A.043 or a right to reemployment under ORS 659A.”
— Or. Rev. Stat. § 659A.043(3)(a)(A) — 1 case
Petock v. Asante, 268 P.3d 579 (Or. 2011).
“On review, plaintiff argues primarily that the Court of Appeals erred in holding that an aggravation of an earlier injury cannot give rise to a right to reinstatement under ORS 659A.043 or a right to reemployment under ORS 659A.”
— Or. Rev. Stat. § 659A.043(3)(a)(F) — 5 cases
Petock v. Asante, 240 P.3d 56 (Or. Ct. App. 2010).
“1 In her first claim, plaintiff alleged that defendant *117 “failed and refused to reinstate plaintiff into her former position in violation of ORS 659A.043 * * That statute provides, in part: “(1) A worker who has sustained a compensable injury shall be reinstated by the…”
Petock v. Asante, 268 P.3d 579 (Or. 2011).
“On review, plaintiff argues primarily that the Court of Appeals erred in holding that an aggravation of an earlier injury cannot give rise to a right to reinstatement under ORS 659A.043 or a right to reemployment under ORS 659A.”
— Or. Rev. Stat. § 659A.043(5) — 1 case
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