72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
HA to SB 916
LC 3706/SB 916-1
HOUSE AMENDMENTS TO
SENATE BILL 916
By COMMITTEE ON RULES AND PUBLIC AFFAIRS
August 25
In line 2 of the printed bill, after the semicolon delete the
rest of the line and insert 'creating new provisions; and
amending ORS 657.044, 657.176 and 657.471.'.
After line 19, insert:
' { + SECTION 2. + } 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 { - . - } { + ; or
' (h) Has committed a disqualifying act described in subsection
(9) or (10) of this section. + }
' (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 { + :
' (A) + } Fails to comply with the terms and conditions of a
reasonable { + written + } policy established by the
employer { + or through collective bargaining + }, which may
include blanket, random, periodic and probable cause testing,
that governs the use, sale, possession or effects of
{ - controlled substances - } { + drugs + } or alcohol in the
workplace { + ;
' (B) Fails or refuses to take a drug or alcohol test as
required by the employer's reasonable written policy;
' (C) Refuses to cooperate with or subverts or attempts to
subvert a drug or alcohol testing process in any
employment-related test required by the employer's reasonable
written policy, including but not limited to:
' (i) Refusal or failure to complete proper documentation that
authorizes the test;
' (ii) Refusal or failure to sign a chain of custody form;
' (iii) Presentation of false identification;
' (iv) Placement of an adulterant in the individual's specimen
for testing, when the adulterant is identified by a testing
facility; or
' (v) Interference with the accuracy of the test results by
conduct that includes dilution or adulteration of a test
specimen;
' (D) Is under the influence of intoxicants while performing
services for the employer;
' (E) Possesses a drug unlawfully or in violation of the
employer's reasonable written policy during work;
' (F) Tests positive for alcohol or an unlawful drug in
connection with employment; or
' (G) Refuses to enter into or violates the terms of a last
chance agreement with the employer.
' (b)(A) Except as provided in subparagraph (B) of this
paragraph, an individual is not considered to have committed a
disqualifying act under this subsection if the individual, on the
date of separation or within 10 days after the date of
separation, is participating in a recognized drug or alcohol
rehabilitation program and provides documentation of
participation in the program to the department.
' (B) This paragraph does not apply to an individual who has
refused to enter into or has violated the terms of a last chance
agreement with the employer.
' (c) It is no defense or excuse under this section that the
individual's separation resulted from alcohol use, marijuana use,
unlawful drug use, alcoholism or drug addiction + }.
' { - (b) - } { + (d) + } 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 reasonable
written drug-free workplace policy that is consistent with
subsection (9)(a)(A) of this section;
' (b) Because the employer requires the employee to consent to
present or future drug or alcohol tests under a reasonable
written policy that is consistent with subsection (9)(a)(A) of
this section;
' (c) To avoid taking a drug or alcohol test under a reasonable
written policy that is consistent with subsection (9)(a)(A) of
this section; or
' (d) 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)(a) As used in this subsection, 'domestic violence '
means the physical injury, sexual abuse or forced imprisonment,
or threat thereof, of a person by another who is related by blood
or marriage or has a significant relationship with the other
person at the present, or who has been related or has had a
significant relationship at some time in the past, to the extent
that the person's health, safety or welfare is harmed or
threatened thereby.
' (b) An individual may not be disqualified from receiving
benefits under subsection (2)(c), (d) or (e) of this section or
be considered unavailable for purposes of ORS 657.155 if:
' (A) The individual is a victim of domestic violence;
' (B) The individual's health, safety or welfare is endangered
at a current workplace, or would be endangered at an available
workplace, by a related person referred to in paragraph (a) of
this subsection; and
' (C) The individual acts as a reasonable and prudent person of
ordinary sensitivities and has pursued all reasonable
alternatives before voluntarily leaving work. Reasonable
alternatives include, but are not limited to, actions such as
seeking a restraining order, relocating to a secure area and
seeking reasonable accommodations from the employer such as a
transfer within the company.
' { + (13) For purposes of this section:
' (a) 'Adulterant' means a substance that does not occur
naturally in urine, or that occurs naturally in urine but not at
the concentrations detected. 'Adulterant' includes but is not
limited to glutaraldehyde, nitrite concentrations above
physiological levels, hypochlorite or soap.
' (b) 'Drug' means a controlled substance as defined in ORS
475.005.
' (c) 'Last chance agreement' means a reasonable agreement:
' (A) Between an employer and an employee who has violated the
employer's reasonable written policy, has engaged in drug or
alcohol use 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.
' (d) 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 reasonable written policy if there is no applicable
collective bargaining agreement provision. + }
' { + SECTION 3. + } ORS 657.471 is amended to read:
' 657.471. (1) Subject to the provisions of subsections (2) to
(7) and (10) of this section, benefits paid to an eligible
individual shall be charged to each of the individual's employers
during the base year in the same proportion that the wages paid
by each employer to the individual during the base year bear to
the wages paid by all employers to that individual during that
year.
' (2) With the exception of a political subdivision electing to
pay taxes under ORS 657.509, an employer's account shall not be
charged with benefits paid an unemployed individual in excess of
one-third of the base year wages paid that individual while in
the employ of such employer.
' (3) Benefits paid to an individual for unemployment
immediately after the expiration of a period of disqualification
for having left work of an employer voluntarily without good
cause shall not be charged to that employer.
' (4) Benefits paid to an individual for unemployment
immediately after the expiration of a period of disqualification
for having been discharged by an employer for misconduct shall
not be charged to that employer.
' (5) Benefits paid without any disqualification to an
individual shall not be charged to an employer of the individual
for the immediate period of unemployment when:
' (a) The individual left work of the employer voluntarily for
good cause not attributable to the employer; or
' (b) The employer discharged the individual because the
individual was unable to satisfy a job prerequisite required by
law or administrative rule.
' (6) If it is determined under the provisions of subsection
(3), (4) or (5) of this section that benefits paid to an
individual shall not be charged to an employer, such employer's
account shall not be charged for any benefits paid for any
subsequent period or periods of unemployment during that
individual's affected benefit year or during any benefit year
beginning within 52 weeks subsequent to the affected benefit
year.
' (7) If a base-year employer, not otherwise eligible for
relief of charges for benefits under this section, receives
notification of an initial valid determination of a claim filed
by an individual who:
' (a) Left work of such employer voluntarily and not
attributable to the employer, such employer may request relief of
charges within 30 days of the date the notice provided for in ORS
657.266 is mailed or delivered to the employer. The request must
advise the Director of the Employment Department in writing the
date of such leaving and that such leaving was voluntary and not
attributable to the employer and the reason therefor. Upon
receipt of such notice from the employer the director shall
investigate the separation and if the resulting determination,
which shall be made by the director, establishes that the leaving
was voluntary and not attributable to the employer, that
employer's account shall not be charged with benefits during that
individual's benefit year. If the individual was reemployed by
such employer prior to the filing of the initial valid claim, the
employer shall not receive relief of the employer's account under
this subsection;
' (b) Was disqualified for the individual's most recent
separation from such employer by the director's decision that
found the individual has been discharged for misconduct connected
with the work, that employer may request relief of charges within
30 days of the date the notice provided for in ORS 657.266 is
mailed or delivered to the employer. Upon receipt of such request
from the employer, the director shall examine department records
and if the requirements of this subsection have been met shall
grant the relief of charges to that employer for benefits paid to
the individual during the benefit year; or
' (c) Was discharged for reasons that would be disqualifying
under ORS 657.176 (2)(a), (b), (f) { + , (g) or (h) + } { - or
(g) or (9) - } , the employer may request relief of charges
within 30 days of the date the notice provided for in ORS 657.266
is mailed or delivered to the employer. The request must specify
the date of the discharge and the reasons why the employer
believes the discharge was for reasons that would be
disqualifying under ORS 657.176 (2)(a), (b), (f) { + , (g) or
(h) + } { - or (g) or (9) - } . Upon receipt of the request
from the employer, the director shall review the information
provided by the employer and determine whether the employer is
entitled to relief of charges for benefits paid to the individual
during the benefit year. If the director determines that the
employer is entitled to such relief of charges, the director
shall grant the relief.
' (8) The determination of the director under subsection (7)(a)
and (c) of this section shall be final in all cases unless an
application for hearing is filed within 20 days after delivery of
such decision, or, if mailed, within 20 days after the same was
mailed to the employer's last-known address. When a request for
hearing has been timely filed, a hearing officer shall be
assigned to conduct a hearing. After the hearing officer has
afforded all parties an opportunity for a fair hearing, the
hearing officer shall affirm or reverse the decision and promptly
notify all parties entitled to notice of the decision and the
reasons therefor. Decisions of the hearing officer under this
subsection become final and may be judicially reviewed as
provided in ORS 657.684 to the extent applicable.
' (9) If the director finds that an employer or any employee,
officer or agent of an employer, in submitting facts under
subsection (7) or (8) of this section willfully makes a false
statement or representation or willfully fails to report a
material fact concerning the termination of an individual's
employment, the director shall make a determination thereon
charging the employer's reserve account not less than two nor
more than 10 times the weekly benefit amount of the claimant or
claimants, as the case may be. The director shall give notice to
the employer of the determination under this subsection and such
decision of the director shall become final unless an application
for hearing is filed in accordance with subsection (8) of this
section.
' (10) Benefits paid to an individual shall not be charged to a
base-year employer if:
' (a) The employer furnished part-time work to the individual
during the base year;
' (b) The individual has become eligible for benefits because
of loss of employment with one or more other employers;
' (c) The employer has continued to furnish part-time work to
the individual in substantially the same amount as during the
individual's base year; and
' (d) The employer requests relief of charges within 30 days of
the date the notice provided for in ORS 657.266 is mailed or
delivered to the employer.
' { + SECTION 4. + } { + The amendments to ORS 657.176 and
657.471 by sections 2 and 3 of this 2003 Act apply only to claims
for unemployment benefits filed on or after the effective date of
this 2003 Act. + } ' .
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