74th OREGON LEGISLATIVE ASSEMBLY--2007 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 2183
 
                           A-Engrossed
 
                         House Bill 2460
                  Ordered by the Senate June 4
            Including Senate Amendments dated June 4
 
Sponsored by Representatives HOLVEY, ROSENBAUM, SCHAUFLER
 
 
                             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.
 
  Redefines 'family leave' to exclude leave taken by employee who
is unable to work because of disabling compensable injury under
Workers' Compensation Law. { +  Provides conditions for use of
family leave. + }
 
                        A BILL FOR AN ACT
Relating to Oregon family leave; creating new provisions; and
  amending ORS 659A.043, 659A.046, 659A.150 and 659A.162.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 659A.150 is amended to read:
  659A.150. As used in ORS 659A.150 to 659A.186:
  (1) 'Covered employer' means an employer described in ORS
659A.153.
  (2) 'Eligible employee' means any employee of a covered
employer other than those employees exempted under the provisions
of ORS 659A.156.
  (3) 'Family leave' means a leave of absence described in ORS
659A.159 { + , except that 'family leave' does not include leave
taken by an eligible employee who is unable to work because of a
disabling compensable injury, as defined in ORS 656.005, under
ORS chapter 656 + }.
  (4) 'Family member' means the spouse of an employee, the
biological, adoptive or foster parent or child of the employee, a
parent-in-law of the employee or a person with whom the employee
was or is in a relationship of in loco parentis.
  (5) 'Health care provider' means:
  (a) A person who is primarily responsible for providing health
care to an eligible employee or a family member of an eligible
employee, who is performing within the scope of the person's
professional license or certificate and who is:
  (A) A physician licensed to practice medicine under ORS
677.110, including a doctor of osteopathy;
  (B) A podiatrist licensed under ORS 677.825;
  (C) A dentist licensed under ORS 679.090;
  (D) A psychologist licensed under ORS 675.030;
  (E) An optometrist licensed under ORS 683.070;
  (F) A naturopath licensed under ORS 685.080;
  (G) A registered nurse licensed under ORS 678.050;
  (H) A nurse practitioner certified under ORS 678.375;
  (I) A direct entry midwife licensed under ORS 687.420;
  (J) A licensed registered nurse who is certified by the Oregon
State Board of Nursing as a nurse midwife nurse practitioner;
  (K) A clinical social worker licensed under ORS 675.530; or
  (L) A chiropractic physician licensed under ORS 684.054, but
only to the extent the chiropractic physician provides treatment
consisting of manual manipulation of the spine to correct a
subluxation demonstrated to exist by X-rays.
  (b) A person who is primarily responsible for the treatment of
an eligible employee or a family member of an eligible employee
solely through spiritual means, including but not limited to a
Christian Science practitioner.
  (6) 'Serious health condition' means:
  (a) An illness, injury, impairment or physical or mental
condition that requires inpatient care in a hospital, hospice or
residential medical care facility;
  (b) An illness, disease or condition that in the medical
judgment of the treating health care provider poses an imminent
danger of death, is terminal in prognosis with a reasonable
possibility of death in the near future, or requires constant
care; or
  (c) Any period of disability due to pregnancy, or period of
absence for prenatal care.
  SECTION 2. ORS 659A.162 is amended to read:
  659A.162. (1) Except as specifically provided by ORS 659A.150
to 659A.186, an eligible employee is entitled to up to 12 weeks
of family leave within any one-year period.
  (2)(a) In addition to the 12 weeks of leave authorized by
subsection (1) of this section,   { - a - }   { + an eligible + }
female employee may take a total of 12 weeks of leave within any
one-year period for an illness, injury or condition related to
pregnancy or childbirth that disables the  { + eligible + }
employee from performing any available job duties offered by the
employer.
  (b) An  { + eligible + } employee who takes 12 weeks of family
leave within a one-year period for the purpose specified in ORS
659A.159 (1)(a) may take up to an additional 12 weeks of leave
within the one-year period for the purpose specified in ORS
659A.159 (1)(d).
  (3) When two family members work for the same covered employer,
the  { + eligible + } employees may not take concurrent family
leave unless:
  (a) One employee needs to care for the other employee who is
suffering from a serious health condition; or
  (b) One employee needs to care for a child who has a serious
health condition while the other employee is also suffering a
serious health condition.
  (4) An  { + eligible + } employee may take family leave for the
purposes specified in ORS 659A.159 (1)(a) in two or more
nonconsecutive periods of leave only with the approval of the
employer.
  (5) Leave need not be provided to an eligible employee by a
covered employer for the purpose specified in ORS 659A.159 (1)(d)
if another family member is available to care for the child.
   { +  (6) A covered employer may not reduce the amount of
family leave available to an eligible employee under this section
by any period the employee is unable to work because of a
disabling compensable injury. + }
    { - (6) - }   { + (7) + } The Commissioner of the Bureau of
Labor and Industries shall adopt rules governing when family
leave for a serious health condition of an  { + eligible + }
employee or a family member of the  { + eligible + } employee may
be taken intermittently or by working a reduced workweek. Rules
adopted by the commissioner under this subsection shall allow
taking of family leave on an intermittent basis or by use of a
reduced workweek to the extent permitted by federal law and to
the extent that taking family leave on an intermittent basis or
by use of a reduced workweek will not result in the loss of an
 { + eligible + } employee's exempt status under the federal Fair
Labor Standards Act.
  SECTION 3.  { + The amendments to ORS 659A.150 and 659A.162 by
sections 1 and 2 of this 2007 Act apply only to periods of family
leave taken on or after the effective date of this 2007 Act. + }
  SECTION 4. ORS 659A.043 is amended to read:
  659A.043. (1) A worker who has sustained a compensable injury
shall be reinstated by the worker's employer to the worker's
former position of employment upon demand for such reinstatement,
if the position exists and is available and the worker is not
disabled from performing the duties of such position. A worker's
former position is available even if that position has been
filled by a replacement while the injured worker was absent. If
the former position is not available, the worker shall be
reinstated in any other existing position that is vacant and
suitable. A certificate by the attending physician or a nurse
practitioner authorized to provide compensable medical services
under ORS 656.245 that the physician or nurse practitioner
approves the worker's return to the worker's regular employment
or other suitable employment shall be prima facie evidence that
the worker is able to perform such duties.
  (2) Such right of reemployment shall be subject to the
provisions for seniority rights and other employment restrictions
contained in a valid collective bargaining agreement between the
employer and a representative of the employer's employees.
  (3) Notwithstanding subsection (1) of this section:
  (a) The right to reinstatement to the worker's former position
under this section terminates when whichever of the following
events first occurs:
  (A) A medical determination by the attending physician or,
after an appeal of such determination to a medical arbiter or
panel of medical arbiters pursuant to ORS chapter 656, has been
made that the worker cannot return to the former position of
employment.
  (B) The worker is eligible and participates in vocational
assistance under ORS 656.340.
  (C) The worker accepts suitable employment with another
employer after becoming medically stationary.
  (D) The worker refuses a bona fide offer from the employer of
light duty or modified employment that is suitable prior to
becoming medically stationary.
  (E) Seven days elapse from the date that the worker is notified
by the insurer or self-insured employer by certified mail that
the worker's attending physician or a nurse practitioner
authorized to provide compensable medical services under ORS
656.245 has released the worker for employment unless the worker
requests reinstatement within that time period.
  (F) Three years elapse from the date of injury.
  (b) The right to reinstatement under this section does not
apply to:
  (A) A worker hired on a temporary basis as a replacement for an
injured worker.
  (B) A seasonal worker employed to perform less than six months'
work in a calendar year.
  (C) A worker whose employment at the time of injury resulted
from referral from a hiring hall operating pursuant to a
collective bargaining agreement.
  (D) A worker whose employer employs 20 or fewer workers at the
time of the worker's injury and at the time of the worker's
demand for reinstatement.
   { +  (4) Notwithstanding ORS 659A.165, a worker who refuses an
offer of employment under subsection (3)(a)(D) of this section
 
and who otherwise is entitled to family leave under ORS 659A.150
to 659A.186:
  (a) Automatically commences a period of family leave under ORS
659A.150 to 659A.186 upon refusing the offer of employment; and
  (b) Need not give additional written or oral notice to the
employer that the employee is commencing a period of family
leave. + }
    { - (4) - }   { + (5) + } Any violation of this section is an
unlawful employment practice.
  SECTION 5. ORS 659A.043, as amended by section 22, chapter 811,
Oregon Laws 2003, and section 470, chapter 22, Oregon Laws 2005,
is amended to read:
  659A.043. (1) A worker who has sustained a compensable injury
shall be reinstated by the worker's employer to the worker's
former position of employment upon demand for such reinstatement,
if the position exists and is available and the worker is not
disabled from performing the duties of such position. A worker's
former position is available even if that position has been
filled by a replacement while the injured worker was absent. If
the former position is not available, the worker shall be
reinstated in any other existing position that is vacant and
suitable. A certificate by the attending physician that the
physician approves the worker's return to the worker's regular
employment or other suitable employment shall be prima facie
evidence that the worker is able to perform such duties.
  (2) Such right of reemployment shall be subject to the
provisions for seniority rights and other employment restrictions
contained in a valid collective bargaining agreement between the
employer and a representative of the employer's employees.
  (3) Notwithstanding subsection (1) of this section:
  (a) The right to reinstatement to the worker's former position
under this section terminates when whichever of the following
events first occurs:
  (A) A medical determination by the attending physician or,
after an appeal of such determination to a medical arbiter or
panel of medical arbiters pursuant to ORS chapter 656, has been
made that the worker cannot return to the former position of
employment.
  (B) The worker is eligible and participates in vocational
assistance under ORS 656.340.
  (C) The worker accepts suitable employment with another
employer after becoming medically stationary.
  (D) The worker refuses a bona fide offer from the employer of
light duty or modified employment that is suitable prior to
becoming medically stationary.
  (E) Seven days elapse from the date that the worker is notified
by the insurer or self-insured employer by certified mail that
the worker's attending physician has released the worker for
employment unless the worker requests reinstatement within that
time period.
  (F) Three years elapse from the date of injury.
  (b) The right to reinstatement under this section does not
apply to:
  (A) A worker hired on a temporary basis as a replacement for an
injured worker.
  (B) A seasonal worker employed to perform less than six months'
work in a calendar year.
  (C) A worker whose employment at the time of injury resulted
from referral from a hiring hall operating pursuant to a
collective bargaining agreement.
  (D) A worker whose employer employs 20 or fewer workers at the
time of the worker's injury and at the time of the worker's
demand for reinstatement.
   { +  (4) Notwithstanding ORS 659A.165, a worker who refuses an
offer of employment under subsection (3)(a)(D) of this section
 
and who otherwise is entitled to family leave under ORS 659A.150
to 659A.186:
  (a) Automatically commences a period of family leave under ORS
659A.150 to 659A.186 upon refusing the offer of employment; and
  (b) Need not give additional written or oral notice to the
employer that the employee is commencing a period of family
leave. + }
    { - (4) - }  { +  (5) + } Any violation of this section is an
unlawful employment practice.
  SECTION 6. ORS 659A.046 is amended to read:
  659A.046. (1) A worker who has sustained a compensable injury
and is disabled from performing the duties of the worker's former
regular employment shall, upon demand, be reemployed by the
worker's employer at employment which is available and suitable.
  (2) A certificate of the worker's attending physician or a
nurse practitioner authorized to provide compensable medical
services under ORS 656.245 that the worker is able to perform
described types of work shall be prima facie evidence of such
ability.
  (3) Notwithstanding subsection (1) of this section, the right
to reemployment under this section terminates when whichever of
the following events first occurs:
  (a) The worker cannot return to reemployment at any position
with the employer either by determination of the attending
physician or a nurse practitioner authorized to provide
compensable medical services under ORS 656.245 or upon appeal of
that determination, by determination of a medical arbiter or
panel of medical arbiters pursuant to ORS chapter 656.
  (b) The worker is eligible and participates in vocational
assistance under ORS 656.340.
  (c) The worker accepts suitable employment with another
employer after becoming medically stationary.
  (d) The worker refuses a bona fide offer from the employer of
light duty or modified employment that is suitable prior to
becoming medically stationary.
  (e) Seven days elapse from the date that the worker is notified
by the insurer or self-insured employer by certified mail that
the worker's attending physician or a nurse practitioner
authorized to provide compensable medical services under ORS
656.245 has released the worker for reemployment unless the
worker requests reemployment within that time period.
  (f) Three years elapse from the date of injury.
  (4) Such right of reemployment shall be subject to the
provisions for seniority rights and other employment restrictions
contained in a valid collective bargaining agreement between the
employer and a representative of the employer's employees.
   { +  (5) Notwithstanding ORS 659A.165, a worker who refuses an
offer of employment under subsection (3)(d) of this section and
who otherwise is entitled to family leave under ORS 659A.150 to
659A.186:
  (a) Automatically commences a period of family leave under ORS
659A.150 to 659A.186 upon refusing the offer of employment; and
  (b) Need not give additional written or oral notice to the
employer that the employee is commencing a period of family
leave. + }
    { - (5) - }  { +  (6) + } Any violation of this section is an
unlawful employment practice.
    { - (6) - }  { +  (7) + } This section applies only to
employers who employ six or more persons.
  SECTION 7. ORS 659A.046, as amended by section 24, chapter 811,
Oregon Laws 2003, is amended to read:
  659A.046. (1) A worker who has sustained a compensable injury
and is disabled from performing the duties of the worker's former
regular employment shall, upon demand, be reemployed by the
worker's employer at employment which is available and suitable.
 
  (2) A certificate of the worker's attending physician that the
worker is able to perform described types of work shall be prima
facie evidence of such ability.
  (3) Notwithstanding subsection (1) of this section, the right
to reemployment under this section terminates when whichever of
the following events first occurs:
  (a) The worker cannot return to reemployment at any position
with the employer either by determination of the attending
physician or upon appeal of that determination, by determination
of a medical arbiter or panel of medical arbiters pursuant to ORS
chapter 656.
  (b) The worker is eligible and participates in vocational
assistance under ORS 656.340.
  (c) The worker accepts suitable employment with another
employer after becoming medically stationary.
  (d) The worker refuses a bona fide offer from the employer of
light duty or modified employment that is suitable prior to
becoming medically stationary.
  (e) Seven days elapse from the date that the worker is notified
by the insurer or self-insured employer by certified mail that
the worker's attending physician has released the worker for
reemployment unless the worker requests reemployment within that
time period.
  (f) Three years elapse from the date of injury.
  (4) Such right of reemployment shall be subject to the
provisions for seniority rights and other employment restrictions
contained in a valid collective bargaining agreement between the
employer and a representative of the employer's employees.
   { +  (5) Notwithstanding ORS 659A.165, a worker who refuses an
offer of employment under subsection (3)(d) of this section and
who otherwise is entitled to family leave under ORS 659A.150 to
659A.186:
  (a) Automatically commences a period of family leave under ORS
659A.150 to 659A.186 upon refusing the offer of employment; and
  (b) Need not give additional written or oral notice to the
employer that the employee is commencing a period of family
leave. + }
    { - (5) - }  { +  (6) + } Any violation of this section is an
unlawful employment practice.
    { - (6) - }  { +  (7) + } This section applies only to
employers who employ six or more persons.
  SECTION 8.  { + The amendments to ORS 659A.043 and 659A.046 by
sections 4 to 7 of this 2007 Act apply only to refusals of
employment under ORS 659A.043 (3)(a)(D) and 659A.046 (3)(d) that
occur after the effective date of this 2007 Act. + }
                         ----------