71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 1380
 
                         House Bill 2418
 
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Representative Jackie
  Winters for Associated Oregon Industries)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Disqualifies individual from receipt of unemployment benefits
for acts involving alcohol, marijuana or unlawful drugs or
violation of last chance agreement.
 
                        A BILL FOR AN ACT
Relating to disqualification from receipt of unemployment
  benefits; creating new provisions; and amending ORS 657.176.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 657.176 is amended to read:
  657.176. (1) An authorized representative designated by the
Director of the Employment Department shall promptly examine each
claim to determine whether an individual is subject to
disqualification as a result of a separation, termination,
leaving, resignation, or disciplinary suspension from work or as
a result of failure to apply for or accept work and shall
promptly enter a director's decision if required by ORS 657.267.
The authorized representative may address issues raised by
information before the authorized representative, including but
not limited to the nature of the separation, notwithstanding the
way the parties characterize those issues.
  (2) An individual shall be disqualified from the receipt of
benefits until the individual has performed service in employment
subject to this chapter, or for an employing unit in this or any
other state or Canada or as an employee of the federal
government, for which remuneration is received that equals or
exceeds four times the individual's weekly benefit amount
subsequent to the week in which the act causing the
disqualification occurred, if the authorized representative
designated by the director finds that the individual:
  (a) Has been discharged for misconduct connected with work;
  (b) Has been suspended from work for misconduct connected with
work;
  (c) Voluntarily left work without good cause;
  (d) Failed without good cause to apply for available suitable
work when referred by the employment office or the director;
  (e) Failed without good cause to accept suitable work when
offered;
  (f) Has been discharged or suspended for being absent or tardy
in reporting to work and the absence or tardiness occurred as a
result of the unlawful use of any   { - controlled substance - }
 { + drug + } unless the person was participating in a recognized
drug rehabilitation program at the time of the absence or
tardiness, or is so participating within 10 days of the date of
the discharge or suspension, and the person provides to the
Employment Department documentation of program participation. As
used in this paragraph, ' unlawful use' does not include the use
of a   { - controlled substance - }   { + drug + } taken under
the supervision of a licensed health care professional and in
accordance with the prescribed directions for consumption, or
other uses authorized by the laws of this state; or
  (g) Has been discharged or suspended for being absent or tardy
in reporting to work and the absence or tardiness occurred as the
result of the use of alcohol on a second or any subsequent
occasion within a period of 12 months unless the person was
participating in a recognized alcohol rehabilitation program at
the time of the absence or tardiness, or is so participating
within 10 days of the date of the discharge or suspension, and
the person provides to the department documentation of program
participation.
  (3) If the authorized representative designated by the director
finds an individual was discharged for misconduct because of the
individual's commission of a felony or theft in connection with
the individual's work, all benefit rights based on wages earned
prior to the date of the discharge shall be canceled if the
individual's employer notifies the director of the discharge
within 10 days following issuance of the notice provided for in
ORS 657.265 or 30 days following issuance of the notice provided
for in ORS 657.266, and:
  (a) The individual has admitted commission of the felony or
theft to an authorized representative of the director;
  (b) The individual has signed a written admission of such act
and such written admission has been presented to an authorized
representative of the director; or
  (c) Such act has resulted in a conviction by a court of
competent jurisdiction.
  (4) An individual disqualified under subsection (2) of this
section shall have the individual's maximum benefit amount
reduced by eight times the individual's weekly benefit amount.
However, in no event shall the individual's maximum benefit
amount be reduced to less than the individual's weekly benefit
amount unless the individual has previously received benefits
during the individual's benefit year.
  (5) An individual shall not be disqualified from receiving
benefits under subsection (2)(c) or (e) of this section or under
ORS 657.200 if the individual ceases work or fails to accept work
when a collective bargaining agreement between the individual's
bargaining unit and the individual's employer is in effect and
the employer unilaterally modifies the amount of wages payable
under the agreement, in breach of the agreement.
  (6) For purposes of applying subsection (2) of this section,
when an individual has notified an employer that the individual
will leave work on a specific date and it is determined:
  (a) That such separation would be for reasons that constitute
good cause;
  (b) The individual voluntarily left work without good cause
prior to the date of the impending good cause voluntary leaving
date; and
  (c) The actual voluntary leaving of work occurs no more than 15
days prior to the planned date of voluntary leaving,
 
then such separation from work shall be adjudicated as if the
actual voluntary leaving had not occurred and the planned
voluntary leaving had occurred. However, the individual shall be
ineligible for benefits for the period including the week in
which the actual voluntary leaving occurred through the week
prior to the week of the planned good cause voluntary leaving
date.
  (7) For purposes of applying subsection (2) of this section,
when an employer has notified an individual that the individual
will be discharged on a specific date and it is determined:
  (a) That such discharge would not be for reasons that
constitute misconduct connected with the work;
  (b) The individual voluntarily left work without good cause
prior to the date of the impending discharge; and
  (c) The voluntary leaving of work occurs no more than 15 days
prior to the date of the impending discharge,
 
then such separation from work shall be adjudicated as if the
voluntary leaving had not occurred and the discharge had
occurred. However, the individual shall be ineligible for
benefits for the period including the week in which the voluntary
leaving occurred through the week prior to the week in which the
individual would have been discharged.
  (8) For purposes of applying subsection (2) of this section,
when an individual has notified an employer that the individual
will leave work on a specific date and it is determined:
  (a) That such voluntary leaving would be for reasons that do
not constitute good cause;
  (b) The employer discharged the individual, but not for
misconduct connected with work, prior to the date of the planned
voluntary leaving; and
  (c) The actual discharge occurs no more than 15 days prior to
the planned voluntary leaving,
 
then such separation from work shall be adjudicated as if the
discharge had not occurred and the planned voluntary leaving had
occurred. However, the individual shall be eligible for benefits
for the period including the week in which the actual discharge
occurred through the week prior to the week of the planned
voluntary leaving date.
  (9)(a) For the purposes of subsection (2) of this section, an
individual is considered to have committed a disqualifying act
when the individual   { - fails to comply with the terms and
conditions of a reasonable policy established by the employer,
which may include blanket, random, periodic and probable cause
testing, that governs the use, sale, possession or effects of
controlled substances or alcohol in the workplace. - }  { + :
  (A) Fails or refuses to take a drug or alcohol test as required
by the employer's written policy;
  (B) Refuses to cooperate with or subverts or attempts to
subvert a drug or alcohol testing process in any employment
related test, including but not limited to:
  (i) Refusal or failure to complete proper documentation that
authorizes the test;
  (ii) Refusal or failure to verify the chain of custody;
  (iii) Presentation of false identification;
  (iv) Possession of a known adulterant when the individual
reports for testing or gives a specimen for testing; or
  (v) Interference with the accuracy of the test results by
conduct that includes dilution or adulteration of a test
specimen;
  (C) Is under the influence of intoxicants during work or while
on the employer's premises;
  (D) Possesses a drug unlawfully or in violation of the
employer's written policy during work or while on the employer's
premises;
  (E) Tests positive for alcohol or an unlawful drug in
connection with employment, including a preemployment or
preplacement test; or
  (F) Refuses to enter into or violates the terms of a last
chance agreement with the employer.
  (b) It is no defense or excuse for misconduct under this
section that individual's misconduct resulted from alcohol use,
marijuana use, unlawful drug use, alcoholism or drug
addiction. + }
    { - (b) - }   { + (c) + } The department shall adopt rules to
carry out the provisions of this subsection.
    { - (10) As used in subsections (2)(f) and (9) of this
section, ' controlled substance' has the meaning for that term
provided in ORS 475.005. - }
   { +  (10) For the purposes of subsection (2) of this section,
an individual is considered to have committed a disqualifying act
when the individual voluntarily leaves work, fails to apply for
available suitable work when referred by the employment office or
the director or fails to accept suitable work when offered:
  (a) Because the employer has or introduces a drug-free
workplace policy;
  (b) Because the employer requires the employee to consent to
present or future drug or alcohol tests;
  (c) To avoid taking a drug or alcohol test;
  (d) To avoid being discharged for misconduct of any kind; or
  (e) To avoid meeting the requirements of a last chance
agreement. + }
  (11) An individual may not be disqualified from receiving
benefits under subsection (2)(c) of this section and shall be
deemed laid off if the individual:
  (a) Works under a collective bargaining agreement;
  (b) Elects to be laid off when the employer has decided to lay
off employees; and
  (c) Is placed on the referral list under the collective
bargaining agreement.
   { +  (12) For purposes of this section:
  (a) 'Drug' means a controlled substance as defined in ORS
475.005.
  (b) 'Last chance agreement' means a reasonable agreement:
  (A) Between an employer and an employee who has violated the
employer's written policy, has engaged in drug or alcohol
misconduct connected with work or has admitted to alcohol abuse,
marijuana use or unlawful drug use; and
  (B) That permits the employee to return to work under
conditions that may require the employee to:
  (i) Abstain from alcohol use, marijuana use and unlawful drug
use; and
  (ii) Attend and comply with the requirements of a
rehabilitation or education program acceptable to the employer.
  (c) An individual is 'under the influence of intoxicants ' when
the level of alcohol, marijuana or unlawful drugs present in the
individual's body exceeds the amount prescribed in a collective
bargaining agreement, or the amount prescribed in the employer's
written policy if there is no applicable collective bargaining
agreement provision. + }
  SECTION 2.  { + The amendments to ORS 657.176 by section 1 of
this 2001 Act apply only to claims for unemployment benefits
filed on or after the effective date of this 2001 Act. + }
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