Chapter 324
AN ACT
SB 195
Relating to employment that ends individual’s disqualification from
receipt of unemployment benefits; amending ORS 657.176.
Be It Enacted by the People of
the State of
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, as defined in ORS 657.030 (2), in this state or in
employment, as defined by a law equivalent to ORS 657.030 (2), in [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 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] after 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 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;
(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] after 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 that 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] the felony or theft and the written admission has been
presented to an authorized representative of the director; or
(c) [Such act] The
felony or theft 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] may 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 that:
(a) [That such] The
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] occurred
no more than 15 days prior to the planned date of voluntary leaving,
then [such] the 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 that:
(a) [That such] The
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] occurred
no more than 15 days prior to the date of the impending discharge,
then [such] the 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 that:
(a) [That such] The
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] occurred no more than
15 days prior to the planned voluntary leaving,
then [such] the 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 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.
(d) The department shall
adopt rules to carry out the provisions of this subsection.
(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) 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, or is the parent or guardian of a minor child who is a victim, of
domestic violence, stalking or sexual assault;
(b) The individual
leaves work, fails to apply for available suitable work or fails to accept
suitable work when offered to protect the individual or the minor child from
further domestic violence, stalking or sexual assault that the individual
reasonably believes will occur at the workplace or elsewhere; and
(c) The individual
pursues reasonable available alternatives to leaving work, failing to apply for
available suitable work or failing to accept suitable work when offered.
(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.
Approved by the Governor June 11, 2007
Filed in the office of Secretary of State June 13, 2007
Effective date January 1, 2008
__________