The Department of Administrative Services in the state of Oregon have proposed their own set of changes to way things are done in the workers’ comp system in the state. The new proposed changes are officially called OAR 105 040 0020. But all you have to know about them, Oregon employers, is that they would change the way that state employers can use an injured worker list as a first option to fill blank spots in their worker rosters.
The proposal, to be specific, would put together lists of workers who have been injured on the job while working for one state agency or another in the part of the government known as the Executive Branch. It can’t be a small injury that gets an employee on this list. No, it would have to be an injury that was determined to be compensable and related to their former jobs, and the employee must also, to be eligible to be on this must, not have waived their reinstatement rights or their reemployment rights, as either on their own or in some form of workers’ collective bargaining agreement.
What would be the benefit of being on this list for an injured former state employee? The list will serve to organize all of the workers’ who have been injured in a list that puts them in a lineup based on when they were injured, as well as what their type of work is and how much they have made on the state level. The injured worker can stay on this list for up to as many as 3 years from the date that they were injured. They would be taken off the list, of course, as soon as they would get a new job through the state.
This rule was proposed on March 1, and it isn’t clear exactly when it could kick into effect, if the Department of Administrative Services in fact decides to push the proposal into a full out rule change.
Again, if an employee is hard working in their previous position, gets hurt, but is still enthusiastic to come back to work as soon as they are able, most employers would welcome this as a return to work miracle, or at least a success. That is because in Oregon and across the country return to work is the catch phrase of the workers’ comp and disability world. Getting injured employees back to work saves on disability costs, and it saves on the costs of having to train new employees.
Bit in these scenarios in the Oregon labor law—whereby employers do not have to rehire their former workers after they have been injured—one can seemingly understand why employers may not want to hire them back. After all, if an employee is getting trained to do other work, or is working already for another employer while they are on disability, there could be obvious reasons why the former employer wouldn’t want to have them back.
Other scenarios in this labor law include when the employer offers the injured worker a light duty or modified duty position at work, and the employee refuses it. Then when the employee becomes medically stationary, the employer is not liable to hire them back.
Another situation can occur after an employee is released by their doctor and gets word that they can go back to work at a suitable position. That employee has seven days after getting a certified notice about the physician’s release from the insurance company or the employer. After those seven days, if the employee hasn’t come back for re-employment, then the employer does not have to rehire them under Oregon law.
Some other scenarios: an employer doesn’t have to rehire the worker if three years have already passed since the first injury took place; or if they had fired the worker for other legitimate reasons, such as discipline issues, that are not connected with the injury and would result in the termination of any other employee.
Here’s another update that Oregon employers should have a heads up on. This one has to do with the rights workers have to come back to work after they have been disabled and on workers’ comp leave. This sounds sort of illogical, because usually employers want their employees to come back to work after an injury to save them on workers’ comp and disability costs. But I supposed there are some employers who out there for one reason or another do not want some of their injured workers coming back to them after their disability subsides enough to allow them to do some work.
What this new law, which covers the loss of re-employment rights under ORS 659A.046, an injured worker has the right to come back and gain their employment status in Oregon labor law. But they can lose this right under certain circumstances. One of these scenarios is if the worker’s physician or another medical expert acting as an arbiter decides that the employee cannot return to their employer under any sort of job, after the worker has become so called “medically stationary.”
Another situation can come about when the employee becomes eligible for vocational assistance under another Oregon labor law—ORS 656.340—and then takes advantage of this vocational assistance. That means they get trained to perform another task, and take up offers of help to perform this task for another employer.
A third scenario is if the workers become medically stationary, but still accepts an offer of employment from another employer. When that employee stops being medically stationary, then the former employer is not required to have to hire them back. Employers in these circumstances could still hire the person back after their disability if they wanted to, but they wouldn’t have to according to this Oregon labor law.
In the state of Oregon, employees who get hurt or sick on the job have to file a claim in order to start getting their compensation and payments for medical care. As in other states, the whole claim process is started with the aptly named First Report of Injury. In Oregon, this form is also known simply as Form 801.
Employees get this First Report of Injury form from you, their employers. They must also get another form called the First Medical Report, or Form 827, from their doctors and fill this out. Both can get the claims process started for you and your employees.
You send in the First Report of Injury form to your insurance company for workers’ comp coverage. The health provider does the same with the First Medical Report form. The insurance company then figures out if the claim will involve a disability, and in that event, they must contact the state Workers’ Comp Division. The insurance company has 21 days to do so after they receive the First Report of Injury form from you and the First Medical Report form from the employee’s doctor.
After that, the insurance company has 60 days to decide if they want to accept the workers’ claims, or if they want to reject the workers’ claims. In the latter case, the insurance company will then send your employee a letter explaining that their claim has been denied and why. The form will also tell them they have a right to appeal the denial of claim with the state of Oregon’s Hearings Division of the Workers’ Comp Board.
On the other hand, if the insurance company accepts the workers’ claims, then the worker receives a letter saying that their claim has been accepted, and which medical conditions will be paid for by the insurance company.
Oregon state encourages their employers to get with it and get workers’ comp for their employees. Of course, the simple truth of the matter is that it’s good business sense to have your employees covered in case they get hurt at work. That way, your insurance coverage picks up their medical costs, and any compensation these workers may receive for lost wages because they have to stay home from work because of injury or illness.
There’s another simple benefit to having workers’ comp in Oregon, or any state for that matter. It used to be that employees would sue their employers for money whenever they got hurt at work. They’d sue them for liability, or for negligence, and the employers would have to fork over a treasure for legal fees, not to mention any money they had to pay the employee if they were found liable.
Another thing employers should know about the Oregon workers’ comp system, though, is that it is one of those no fault systems. That means that all that matters is that the employee got hurt on the job or while doing job-related work. It doesn’t matter if it was an injury caused by the workers’ negligence or accident. The workers’ comp kicks in no matter what.
And employers in Oregon, you should know all this because almost all of you in the state must have workers’ comp. If you have any number of employees in this state, you are basically required to have the coverage. And by employee, the courts in Oregon have set out a pretty clear four part definition on exactly what constitutes an employee (compared to say an independent contractor).
An employee is someone who you as the employer can control what they do at work and direct them while doing it. Another way to tell if they are an employee is how you pay them. Is it by the hour or by the project? By the piece, or by commission? Also, do you supply the worker with the tools to do their job? And lastly, another way to tell is if you can fire the worker without getting in trouble for breach of contract.