Chapter 508 Oregon Laws 2009

AN ACT

SB 874

Relating to individuals with disabilities; creating new provisions; and amending ORS 659A.100, 659A.103, 659A.109, 659A.112, 659A.115, 659A.118, 659A.124, 659A.130, 659A.133, 659A.136, 659A.139, 659A.142 and 659A.145.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Section 2 of this 2009 Act is added to and made a part of ORS 659A.100 to 659A.145.

SECTION 2. (1) An individual has a disability for the purposes of ORS 659A.100 to 659A.145 if the individual meets any one of the following criteria:

(a) The individual has a physical or mental impairment that substantially limits one or more major life activities of the individual.

(b) The individual has a record of having a physical or mental impairment that substantially limits one or more major life activities of the individual. For the purposes of this paragraph, an individual has a record of having a physical or mental impairment if the individual has a history of, or has been misclassified as having, a physical or mental impairment that substantially limits one or more major life activities of the individual.

(c) The individual is regarded as having a physical or mental impairment that substantially limits one or more major life activities of the individual. For the purposes of this paragraph:

(A) An individual is regarded as having a physical or mental impairment if the individual has been subjected to an action prohibited under ORS 659A.112 to 659A.139 because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity of the individual.

(B) An individual is not regarded as having a physical or mental impairment if the individual has an impairment that is minor and that has an actual or expected duration of six months or less.

(2) Activities and functions that are considered major life activities for the purpose of determining if an individual has a disability include but are not limited to:

(a) Caring for oneself;

(b) Performing manual tasks;

(c) Seeing;

(d) Hearing;

(e) Eating;

(f) Sleeping;

(g) Walking;

(h) Standing;

(i) Lifting;

(j) Bending;

(k) Speaking;

(L) Breathing;

(m) Learning;

(n) Reading;

(o) Concentrating;

(p) Thinking;

(q) Communicating;

(r) Working;

(s) Socializing;

(t) Sitting;

(u) Reaching;

(v) Interacting with others;

(w) Employment;

(x) Ambulation;

(y) Transportation;

(z) Operation of a major bodily function, including but not limited to:

(A) Functions of the immune system;

(B) Normal cell growth; and

(C) Digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions; and

(aa) Ability to acquire, rent or maintain property.

(3) An individual is substantially limited in a major life activity if the individual has an impairment, had an impairment or is perceived as having an impairment that materially restricts one or more major life activities of the individual. An impairment that substantially limits one major life activity of the individual need not limit other major life activities of the individual. An impairment that is episodic or in remission is considered to substantially limit a major life activity of the individual if the impairment would substantially limit a major life activity of the individual when the impairment is active.

(4) When determining whether an impairment substantially limits a major life activity of an individual, the determination shall be made without regard to the ameliorative effects of mitigating measures, including:

(a) Medication;

(b) Medical supplies, equipment or appliances;

(c) Low vision devices or other devices that magnify, enhance or otherwise augment a visual image, except that ordinary eyeglasses or contact lenses or other similar lenses that are intended to fully correct visual acuity or eliminate refractive error may be considered when determining whether an impairment substantially limits a major life activity of an individual;

(d) Prosthetics, including limbs and devices;

(e) Hearing aids, cochlear implants or other implantable hearing devices;

(f) Mobility devices;

(g) Oxygen therapy equipment or supplies;

(h) Assistive technology;

(i) Reasonable accommodations or auxiliary aids or services; or

(j) Learned behavioral or adaptive neurological modifications.

(5) Nothing in subsection (4)(c) of this section authorizes an employer to use qualification standards, employment tests or other selection criteria based on an individual’s uncorrected vision unless the standard, test or other selection criteria, as used by the employer, are shown to be job-related for the position in question and is consistent with business necessity.

SECTION 3. ORS 659A.100 is amended to read:

659A.100. [(1)] As used in this section and [ORS 659A.100 to 659A.145, unless the context requires otherwise] ORS 659A.124, 659A.127 and 659A.130:

[(a)] (1) “Drug” means a controlled substance, as classified in schedules I through V of section 202 of the federal Controlled Substances Act, [21 U.S.C.A. 812,] as amended, and as modified under ORS 475.035.

[(b)] (2) “Illegal use of drugs” means any use of drugs, the possession or distribution of which is unlawful under state law or under the federal Controlled Substances Act, [21 U.S.C.A. 812,] as amended, but does not include the use of a drug taken under supervision of a licensed health care professional, or other uses authorized under the Controlled Substances Act or under other provisions of state or federal law.

[(c) “Person with a disability” means an individual who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment or is regarded as having such an impairment.]

[(d) “State government” has the meaning given that term in ORS 174.111.]

[(2) As used in subsection (1) of this section:]

[(a) “Major life activity” includes but is not limited to self-care, ambulation, communication, transportation, education, socialization, employment and ability to acquire, rent or maintain property.]

[(b) “Has a record of such an impairment” means that the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.]

[(c) “Is regarded as having such an impairment” means that the individual:]

[(A) Has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer or supervisor as having such a limitation;]

[(B) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitude of others toward such impairment; or]

[(C) Has none of the impairments described in subparagraph (A) or (B) of this paragraph, but is treated by an employer or supervisor as having a mental or physical impairment that substantially limits one or more major life activities.]

[(d) “Substantially limits” means:]

[(A) The impairment renders the individual unable to perform a major life activity that the average person in the general population can perform; or]

[(B) The impairment significantly restricts the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform the same major life activity.]

SECTION 4. ORS 659A.103 is amended to read:

659A.103. (1) It is declared to be the public policy of Oregon to guarantee [persons with disabilities] individuals the fullest possible participation in the social and economic life of the state, to engage in remunerative employment, to use and enjoy places of public accommodation, resort or amusement, to participate in and receive the benefits of the services, programs and activities of state government and to secure housing accommodations of their choice, without discrimination on the basis of disability.

(2) [The right to otherwise lawful employment without discrimination because of disability where the reasonable demands of the position do not require such a distinction, and the right to use and enjoy places of public accommodation, resort or amusement, to participate in and receive the benefits of the services, programs and activities of state government and to purchase or rent property without discrimination because of disability, are hereby recognized and declared to be the rights of all the people of this state. It is] The guarantees expressed in subsection (1) of this section are hereby declared to be the policy of the State of Oregon to protect, [these rights] and ORS 659A.100 to 659A.145 shall be construed to effectuate such policy.

SECTION 5. ORS 659A.109 is amended to read:

659A.109. It is an unlawful employment practice for an employer to discriminate against [a worker] an individual with respect to hire or tenure or any term or condition of employment because the [worker] individual has applied for benefits or invoked or [utilized] used the procedures provided for in ORS 659A.100 to 659A.145 or has given testimony under the provisions of [such sections] ORS 659A.100 to 659A.145.

SECTION 6. ORS 659A.112 is amended to read:

659A.112. (1) It is an unlawful employment practice for any employer to refuse to hire, employ or promote, to bar or discharge from employment or to discriminate in compensation or in terms, conditions or privileges of employment [because an otherwise qualified person is a person with a disability] on the basis of disability.

(2) An employer violates subsection (1) of this section if the employer does any of the following:

(a) The employer limits, segregates or classifies a job applicant or employee in a way that adversely affects the opportunities or status of the applicant or employee because the applicant or employee [is a person with] has a disability.

(b) The employer participates in a contractual or other arrangement or relationship that has the effect of subjecting [an otherwise] a qualified job applicant or employee [who is a person] with a disability to the discrimination prohibited by ORS 659A.112 to 659A.139, including but not limited to participating in a relationship with an employment or referral agency, a labor union, an organization providing fringe benefits to an employee of the employer, or an organization providing training and apprenticeship programs.

(c) The employer utilizes standards, criteria or methods of administration that have the effect of discrimination on the basis of disability, or that perpetuate the discrimination of others who are subject to common administrative control.

(d) The employer excludes or otherwise denies equal jobs or benefits to [an otherwise qualified person] a qualified individual because the [person] individual is known to have a relationship or association with [a person] an individual with a disability.

(e) The employer does not make reasonable accommodation to the known physical or mental limitations of [an otherwise qualified person] a qualified individual with a disability who is a job applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer.

(f) The employer denies employment opportunities to a job applicant or employee who is [an otherwise qualified person] a qualified individual with a disability, if the denial is based on the need of the employer to make reasonable accommodation to the physical or mental impairments of the employee or applicant.

(g) The employer uses qualification standards, employment tests or other selection criteria, including those based on an individual’s uncorrected vision or unaided hearing, that screen out or tend to screen out [a person] an individual with a disability or a class of [persons] individuals with disabilities unless the standard, test or other selection criterion, as used by the employer, is shown to be job-related for the position in question and is consistent with business necessity.

(h) The employer fails to select and administer tests relating to employment in the most effective manner to ensure that when the test is administered to a job applicant or employee who has a disability that impairs sensory, manual or speaking skills, the test results accurately reflect the skills, aptitude or other characteristics of the applicant or employee that the test purports to measure, rather than reflecting the impaired sensory, manual or speaking skills of the employee or applicant. The provisions of this paragraph do not limit the ability of an employer to select or administer tests designed to measure sensory, manual or speaking skills of an employee or job applicant.

SECTION 7. ORS 659A.115 is amended to read:

659A.115. For the purposes of ORS 659A.112, [a person with a disability is otherwise] an individual is qualified for a position if the [person] individual, with or without reasonable accommodation, can perform the essential functions of the position. For the purpose of determining the essential functions of the position, due consideration shall be given to the employer’s determination as to the essential functions of a position. If an employer has prepared a written description before advertising or interviewing applicants for a job, the position description shall be considered evidence of the essential functions of the job.

SECTION 8. ORS 659A.118 is amended to read:

659A.118. (1) For the purposes of ORS 659A.112, reasonable accommodation [of an otherwise qualified person with a disability] may include:

(a) Making existing facilities used by employees readily accessible to and usable by [persons] individuals with disabilities.

(b) Job restructuring, part-time or modified work schedules or reassignment to a vacant position.

(d) Appropriate adjustment or modification of examinations, training materials or policies.

(e) The provision of qualified readers or interpreters.

(2) Notwithstanding any other provision of ORS 659A.100 to 659A.145, an employer may not be found to have engaged in an unlawful employment practice solely because the employer fails to provide reasonable accommodation to [a person] an individual with a disability arising out of transsexualism.

(3) An employer is not required to provide a reasonable accommodation to an individual who satisfies the criteria for being an individual with a disability for the purposes of ORS 659A.100 to 659A.145 solely because the individual meets the criterion described in section 2 (1)(c) of this 2009 Act.

SECTION 9. ORS 659A.124 is amended to read:

659A.124. (1) Subject to the provisions of subsection (2) of this section, the protections of ORS 659A.112 do not apply to any job applicant or employee who is currently engaging in the illegal use of drugs if the employer takes action based on that conduct.

(2) The protections of ORS 659A.112 apply to the following [persons] individuals:

(a) [A person] An individual who has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs or has otherwise been rehabilitated successfully and is no longer engaging in the illegal use of drugs.

(b) [A person] An individual who is participating in a supervised rehabilitation program and is no longer engaging in the illegal use of drugs.

(3) An employer may adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that [a person] an individual described in subsection (2)(a) or (b) of this section is no longer engaging in the illegal use of drugs.

SECTION 10. ORS 659A.130 is amended to read:

659A.130. (1) For the purposes of ORS 659A.112 to 659A.139, homosexuality and bisexuality are not physical or mental impairments. [A person] An individual who is homosexual or bisexual [is not a person with] does not have a disability for the purposes of ORS 659A.112 to 659A.139 solely by reason of being homosexual or bisexual.

(2) For the purposes of ORS 659A.112 to 659A.139, the following conditions are not physical or mental impairments, and [a person] an individual with one or more of the following conditions [is not a person with] does not have a disability for the purposes of ORS 659A.112 to 659A.139 solely by reason of that condition:

(a) Transvestism, pedophilia, exhibitionism, voyeurism or other sexual behavior disorders.

(b) Compulsive gambling, kleptomania or pyromania.

SECTION 11. ORS 659A.133 is amended to read:

659A.133. (1) Except as provided in this section, an employer violates ORS 659A.112 if the employer conducts a medical examination of a job applicant, makes inquiries of a job applicant as to whether the applicant [is a person with] has a disability or makes inquiries as to the nature or severity of any disability of the applicant.

(2) An employer may make inquiries into the ability of a job applicant to perform job-related functions.

(3) An employer may require a medical examination after an offer of employment has been made to a job applicant and before the commencement of the employment duties of the applicant, and condition the employment on the results of the examination, if the following conditions are met:

(a) All [persons] individuals entering the employ of the employer must be subject to the examination regardless of disability.

(b) Information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except as follows:

(A) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations.

(B) First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment.

(C) Officers and employees of the Bureau of Labor and Industries investigating compliance with ORS 659A.112 to 659A.139 shall be provided relevant information on request.

(c) The results of an examination authorized under this subsection may only be used in the manner provided for in ORS 659A.112 to 659A.139.

SECTION 12. ORS 659A.136 is amended to read:

659A.136. (1) Except as provided in this section, an employer may not require that an employee submit to a medical examination, may not make inquiries of an employee as to whether the employee [is a person with] has a disability, and may not make inquiries of an employee as to the nature or severity of any disability of the employee, unless the examination or inquiry is shown to be job-related and consistent with business necessity.

(2) An employer may conduct voluntary medical examinations, including voluntary medical histories, that are part of an employee health program available to employees at that work site. An employer may make inquiries into the ability of an employee to perform job-related functions.

(3) Information obtained under subsection (2) of this section relating to the medical condition or history of any employee is subject to the same restrictions applicable to information acquired from medical examinations authorized under ORS 659A.133.

SECTION 13. ORS 659A.139 is amended to read:

659A.139. (1) [ORS 659A.112 to 659A.139] ORS 659A.100 to 659A.145 shall be construed to the extent possible in a manner that is consistent with any similar provisions of the federal Americans with Disabilities Act of 1990, as amended by the federal ADA Amendments Act of 2008 and as otherwise amended.

(2) The determination of whether an individual has a disability as provided in section 2 (1) of this 2009 Act shall be construed in favor of broad coverage of individuals under ORS 659A.100 to 659A.145, to the maximum extent permitted by the terms of ORS 659A.100 to 659A.145.

SECTION 14. ORS 659A.142 is amended to read:

659A.142. (1) As used in this section, “state government” has the meaning given that term in ORS 174.111.

[(1)] (2) It is an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise discriminate against, any individual because that individual [is a person with] has a disability, or to classify or refer for employment any individual because that individual [is a person with] has a disability.

[(2)] (3) It is an unlawful employment practice for a labor organization, because an individual [is a person with] has a disability, to exclude or to expel from its membership such individual or to discriminate in any way against such individual.

[(3)] (4) It is an unlawful practice for any place of public accommodation, resort or amusement as defined in ORS 659A.400, or any person acting on behalf of such place, to make any distinction, discrimination or restriction because a customer or patron is [a person] an individual with a disability.

[(4)(a)] (5)(a) It is an unlawful practice for state government to exclude an individual from participation in or deny an individual the benefits of the services, programs or activities of state government or to make any distinction, discrimination or restriction because the individual [is a person with] has a disability.

(b) Paragraph (a) of this subsection is intended to ensure equal access to available services, programs and activities of state government.

(A) Create an independent entitlement to any service, program or activity of state government; or

(B) Require state government to take any action that state government can demonstrate would result in a fundamental alteration in the nature of a service, program or activity of state government or would result in undue financial or administrative burdens on state government.

[(5)] (6) Receipt or alleged receipt of treatment for a mental disorder does not constitute evidence of an individual’s inability to acquire, rent or maintain property.

SECTION 15. ORS 659A.145, as amended by section 5, chapter 36, Oregon Laws 2008, is amended to read:

659A.145. (1) As used in this section:

(a) “Discrimination” includes:

(A) A refusal to permit, at the expense of [the person with] an individual with a disability, reasonable modifications of existing premises occupied or to be occupied by the [person] individual if:

(i) The modifications may be necessary to afford the [person] individual full enjoyment of the premises; and

(ii) In the case of a rental, when it is reasonable to do so, the renter agrees to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted;

(B) A refusal to make reasonable accommodations in rules, policies, practices or services when the accommodations may be necessary to afford [the person with] an individual with a disability equal opportunity to use and enjoy a dwelling; and

(C) Failure to design and construct a covered multifamily dwelling as required by the Fair Housing Act (42 U.S.C. 3601 et seq.).

(b) “Dwelling” has the meaning given that term in ORS 659A.421.

(2) A person may not discriminate because of a disability of a purchaser, a disability of [a person] an individual residing in or intending to reside in a dwelling after it is sold, rented or made available or a disability of any [person] individual associated with a purchaser by:

(a) Refusing to sell, lease, rent or otherwise make available any real property to a purchaser;

(b) Expelling a purchaser;

(c) Making any distinction or restriction against a purchaser in the price, terms, conditions or privileges relating to the sale, rental, lease or occupancy of real property or the furnishing of any facilities or services in connection therewith;

(d) Attempting to discourage the sale, rental or lease of any real property; or

(e) Representing that a dwelling is not available for inspection, sale, rental or lease when the dwelling is in fact available for inspection, sale, rental or lease.

(3) A person may not publish, circulate, issue or display or cause to be published, circulated, issued or displayed any communication, notice, advertisement, or sign of any kind relating to the sale, rental or leasing of real property that indicates any preference, limitation, specification or discrimination against [a person with a] an individual on the basis of disability.

(4) A person whose business includes engaging in residential real estate related transactions, as defined in ORS 659A.421 (3), may not discriminate against any [person] individual in making a transaction available, or in the terms or conditions of the transaction, because of a disability.

(5) A real estate broker or principal real estate broker may not accept or retain a listing of real property for sale, lease or rental with an understanding that the purchaser, lessee or renter may be discriminated against solely because [a person is a person with] an individual has a disability.

(6) A person may not deny access to, or membership or participation in, any multiple listing service, real estate brokers’ organization or other service, organization or facility relating to the business of selling or renting dwellings, or discriminate against any [person] individual in the terms or conditions of the access, membership or participation, because that [person is a person with] individual has a disability.

(7) A person may not assist, induce, incite or coerce another person to commit an act or engage in a practice that violates this section.

(8) A person may not coerce, intimidate, threaten or interfere with any [person] individual in the exercise or enjoyment of, or on account of having exercised or enjoyed, or on account of having aided or encouraged any other [person] individual in the exercise or enjoyment of, any right granted or protected by this section.

(9) A person may not, for profit, induce or attempt to induce any other person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of [a person with] an individual who has a disability.

(10) In the sale, lease or rental of real property, a person may not disclose to any person that an occupant or owner of the real property has or died from human immunodeficiency virus or acquired immune deficiency syndrome.

(11) Any violation of this section is an unlawful practice.

SECTION 16. If Senate Bill 58 becomes law, section 15 of this 2009 Act (amending ORS 659A.145) is repealed and ORS 659A.145, as amended by section 5, chapter 36, Oregon Laws 2008, and section 1, chapter 109, Oregon Laws 2009 (Enrolled Senate Bill 58), is amended to read:

659A.145. (1) As used in this section:

(a) “Dwelling” has the meaning given that term in ORS 659A.421.

(b) “Purchaser” has the meaning given that term in ORS 659A.421.

(a) Refusing to sell, lease, rent or otherwise make available any real property to a purchaser.

(b) Expelling a purchaser.

(d) Attempting to discourage the sale, rental or lease of any real property.

(e) Representing that a dwelling is not available for inspection, sale, rental or lease when the dwelling is in fact available for inspection, sale, rental or lease.

(f) Refusing to permit, at the expense of the [person] individual with a disability, reasonable modifications of existing premises occupied or to be occupied by the [person] individual if the modifications may be necessary to afford the [person] individual full enjoyment of the premises. However, in the case of a rental, the landlord may, when it is reasonable to do so, condition permission for a reasonable modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.

(g) Refusing to make reasonable accommodations in rules, policies, practices or services when the accommodations may be necessary to afford the [person] individual with a disability equal opportunity to use and enjoy a dwelling.

(h) Failing to design and construct a covered multifamily dwelling as required by the Fair Housing Act (42 U.S.C. 3601 et seq.).

(7) A person may not assist, induce, incite or coerce another person to commit an act or engage in a practice that violates this section.

(11) Any violation of this section is an unlawful practice.

SECTION 17. Section 2 of this 2009 Act and the amendments to ORS 659A.100, 659A.103, 659A.109, 659A.112, 659A.115, 659A.118, 659A.124, 659A.130, 659A.133, 659A.136, 659A.139, 659A.142 and 659A.145 by sections 3 to 16 of this 2009 Act apply only to conduct occurring on or after the effective date of this 2009 Act.

Approved by the Governor June 24, 2009

Filed in the office of Secretary of State June 24, 2009

Effective date January 1, 2010

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