74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
Senate Bill 195
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Governor Theodore R.
Kulongoski for Employment Department)
CHAPTER ................
AN ACT
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 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 { + , 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
Enrolled Senate Bill 195 (SB 195-INTRO) Page 1
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
Enrolled Senate Bill 195 (SB 195-INTRO) Page 2
(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
Enrolled Senate Bill 195 (SB 195-INTRO) Page 3
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.
Enrolled Senate Bill 195 (SB 195-INTRO) Page 4
(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.
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Passed by Senate March 19, 2007
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House May 21, 2007
...........................................................
Speaker of House
Enrolled Senate Bill 195 (SB 195-INTRO) Page 5
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled Senate Bill 195 (SB 195-INTRO) Page 6