As described below, the Oregon Bureau of Labor and Industries (BOLI) has made changes in the Administrative Rules pertaining to Worker's Compensation and Disability Discrimination. Oregon's Administrative Rules can be reviewed on-line at http://arcweb.sos.state.or.us/rules/number_index.html. Employers should examine their policies and practices to ensure that these new interpretations are reflected when addressing any situation to which these new provisions may pertain.
CHANGES AFFECTING WORKER'S COMPENSATION
In the past, the language in Oregon's Statute ORS 659A.046(3)(d)has differed from the language in the accompanying Administrative Rule, OAR 839-006-0136(4), making interpretation difficult. The wording in both the Statute and the Rule now consistently describe that an injured worker's right to re-employment terminates when "The worker refuses a bona fide offer from the employer of light duty or modified employment that is suitable prior to becoming medically stationary."
CHANGES AFFECTING DISABILITY DISCRIMINATION
The definitions of "disability" as listed in OAR 839-006-0275 have been changed as follows:
1. "Traumatic brain injury" has been added to the list of examples of "Physical or mental impairments."
2. "Eating" has been added to the list of examples of "Major life activities."
The following changes have been made to OAR 839-006-0205 and 0206, concerning Reasonable Accommodation and the "Interactive Process":
1. "Meaningful Interactive Process" has been more closely defined to begin, "Once the employee requests an accommodation for the employee's disability, or once the employer knows or should know of the necessity for the process."
2. Steps have been listed to identify "precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations":
- Analyze the job and its essential functions;
- Ascertain job-related limitations imposed by the disability;
- Identify potential accommodations and the effectiveness of each; and,
- Consider the preference of the employee.
3. "Providing a paid or unpaid leave of absence" has been added as an example to the definition of "Reasonable Accommodation" in OAR 839-006-0206.
4. The rules have been amended to state that, "An employer who fails to engage in a meaningful interactive process will be liable for remedies imposed by the Bureau if a reasonable accommodation would have been possible," and that "Failure to provide reasonable accommodation within a reasonable amount of time" can be grounds for a finding of an unlawful employment practice.
The full text of the revisions is available at http://www.boli.state.or.us/BOLI/LEGAL/docs/8390060205LC2004.pdf. Review of the actual revisions may help in gaining insight about entering into a "meaningful interactive process."
Should you have questions or need assistance in making these changes, please just let us know.
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