Navigating the aftermath of workplace injuries can be a challenging process. Multiple state and federal laws may apply, offering employees protections and imposing obligations on employers. Under Oregon law, injured workers are afforded a broad and complex array of protections. Specifically, injured workers are generally entitled to reinstatement and reemployment when they are ready to return to work following workers’ compensation leave. Injured workers are also protected against discrimination based on their invocation of the workers’ compensation system.

Reinstatement rights

A worker employed by an employer with 21 or more employees at the time of their on-the-job injury or at the time they make a demand to return to work are entitled to reinstatement rights under Oregon law. Employers are obligated to reinstate injured workers to their former position “upon demand” by the worker, assuming the person can perform the duties of their former position and the position still exists and is available. Beware that even if the worker’s former position was filled by another person while the worker was recovering from their injury, the position is considered “available” for purposes of the statute. Additionally, if the worker’s former position no longer exists, then the employer must offer the worker a vacant, suitable position.

The injured worker must make a timely demand for reinstatement to their former position according to the employer’s written policy. However, if the employer has no such policy, the worker’s demand may be:

• oral or written;
• made to a supervisor or another person in management;
• made by the injured worker or their attorney; and
• made at any time after the attending medical provider has released the worker to return to work but must be made no later than seven calendar days after the worker receives notice that they have been released to return to work.

The law provides that a certificate from the attending medical provider approving the worker’s return to work is evidence that the worker can perform the duties of their regular employment. If the medical provider’s release states that the employee is unable to perform the duties of their former position, but they are released to perform other duties, the employer then needs to consider the worker’s reemployment rights.

Reemployment rights

Employers with six or more employees are required to reemploy a worker who is disabled from performing the duties of their former position if the employer has an available and suitable position. Reemployment rights are triggered if the injured worker is medically released to perform the duties of an available, suitable position, and timely demand is made by the worker.

A “timely demand” for reemployment mirrors the requirements provided above with respect to a “timely demand” for reinstatement. Like the reinstatement statute, documentation from the worker’s medical provider stating that the worker can return to work but perform only “described types of work” is evidence of the worker’s ability to work.

A “suitable position” is one that meets the worker’s medical restrictions and for which the worker possesses the necessary skills and abilities. Additionally, a suitable position is “as similar as is practicable to the worker’s former position” in the terms and conditions of employment. If the worker, even after being reemployed in an available and suitable position, recovers to the point that they can perform the duties of their former position and they want to work in that position, the worker must make a timely demand for reinstatement.

Termination of rights

An injured worker’s reinstatement and reemployment rights do not last forever. Reinstatement and reemployment rights terminate when any one of the following events first occurs:

• A medical determination by the attending physician has been made that the worker cannot return to the former position or to any other position with the employer.
• The worker is eligible and participates in vocational assistance.
• The worker accepts suitable employment with another employer after becoming medically stationary.
• The worker refuses a bona fide offer from the employer of light duty or modified employment that is suitable prior to becoming medically stationary.
• Seven days elapse from the date that the worker is notified by the insurer or self-insured employer that the worker’s attending medical provider has released the worker for employment unless the worker requests reinstatement within that period.
• Three years elapse from the date of injury.
• The worker is discharged for bona fide reasons not connected with the injury and for which others are or would be discharged.
• The worker clearly and unequivocally abandons employment with the employer.

Other considerations

Employers should also be aware of the potential for injured workers claiming that they were discriminated against by the employer for invoking the workers’ compensation system. Even when an employee is not eligible for reinstatement or reemployment, employers should be cautious about terminating the employee because it could result in a claim for workers’ compensation discrimination. Prior to taking any action against or involving an injured worker who has invoked the workers’ compensation system, the employer should consider the risk of that action being construed as discriminatory.

Oregon’s statutory protections for injured workers and the obligations imposed on employers can be challenging to navigate. Between reinstatement and reemployment rights, the potential for alleged discrimination, and potential obligations under state or federal disability law, there is a lot for employers to consider when a worker is injured on the job.

Watch for details about a Barran Liebman webinar, “Overseeing Injured or Disabled Employees: Response, Requirements & Resources for Employers,” that will be presented July 18. Visit www.barran.com to learn more.

Bruce Garrett is an attorney with Barran Liebman LLP. He advises and represents employers on a wide range of issues. Contact him at 503-276-2175 or bgarrett@barran.com.

Becky Zuschlag is a law clerk with Barran Liebman LLP. She partners with attorneys in employment, labor relations and benefits practices. Contact her at 503-276-2151 or bzuschlag@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

The post Complexities of injured workers’ reinstatement and reemployment rights | OP-ED appeared first on Daily Journal of Commerce.