Or. Rev. Stat. Ann. § 657.176; Or. Admin. R. 471-030-0036, 0-0125, -0126 – Unemployment Compensation
657.176 Grounds and procedure for disqualification; exceptions; rules. (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 subject to this chapter or the equivalent law of another state or Canada or as defined in ORS 657.030 (2) 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 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 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 the felony or theft and the written admission has been presented to an authorized representative of the director; or
(c) 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 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) 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 occurred no more than 15 days prior to the planned date of voluntary leaving,
then 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) 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 occurred no more than 15 days prior to the date of the impending discharge,
then 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) 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 occurred no more than 15 days prior to the planned voluntary leaving,
then 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 or a member of the individual’s immediate family is a victim of domestic violence, stalking or sexual assault, or the individual believes that the individual or a member of the individual’s immediate family could become a victim of domestic violence, stalking or sexual assault; and
(b) The individual leaves work, fails to apply for available suitable work or fails to accept suitable work when offered in order to protect the individual or a member of the individual’s immediate family from domestic violence, stalking or sexual assault that the individual reasonably believes will occur as a result of the individual’s continued employment or acceptance of work.
(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.
471-030-0036
Eligibility Factors
(1) In considering suitable work factors under ORS 657.190 and for purposes of determining eligibility under 657.155(1)(c), the Director may require an individual to actively seek the type of work the individual is most capable of performing due to prior job experience and training except that:
(a) If an individual is unable to secure the individual's customary type of work after contacting the potential employers in the labor market where benefits are being claimed, the Director may require the individual to seek less desirable but similar work or work of another type which the individual is capable of performing by virtue of experience and training.
(b) If the type of work an individual is most capable of performing does not exist in the labor market where the individual is claiming benefits, the Director may require the individual to seek any work that exists in the labor market for which the individual is suited by virtue of experience and training.
(c) After the individual has contacted the potential employers in the labor market where benefits are being claimed and is still unable to obtain work as described in (1)(a) and (b) of this section, the Director may require the individual to further expand work-seeking activities.
(2) For the purposes of ORS 657.155(1)(c), an individual shall be considered able to work in a particular week only if physically and mentally capable of performing the work he or she actually is seeking during all of the week except:
(a) An occasional and temporary disability for less than half of the week shall not result in a finding that the individual is unable to work for that week; and
(b) An individual with a permanent or long-term "physical or mental impairment" (as defined at 29 CFR 1630.2(h)) which prevents the individual from working full time or during particular shifts shall not be deemed unable to work solely on that basis so long as the individual remains available for some work.
(3) For the purposes of ORS 657.155(1)(c), an individual shall be considered available for work if, at a minimum, he or she is:
(a) Willing to work full time, part time, and accept temporary work opportunities, during all of the usual hours and days of the week customary for the work being sought, unless such part time or temporary opportunities would substantially interfere with return to the individual's regular employment; and
(b) Capable of accepting and reporting for any suitable work opportunities within the labor market in which work is being sought, including temporary and part time opportunities; and
(c) Not imposing conditions which substantially reduce the individual's opportunities to return to work at the earliest possible time; and
(d) Physically present in the normal labor market area as defined by section (6) of this rule, every day of the week, unless:
(A) The individual is actively seeking work outside his or her normal labor market area; or
(B) The individual is infrequently absent from the normal labor market area for reasons unrelated to work search, for less than half of the week, and no opportunity to work or referral to work was missed by such absence.
(e) However, an individual with a permanent or long-term physical or mental impairment (as defined at 29 CFR 1630.2(h)) which prevents the individual from working full time or during particular shifts shall not be deemed unavailable for work solely on that basis so long as the individual remains available for some work.
(f) For the purposes of ORS 657.155(1)(c), an individual is not available for work in any week claimed in which the individual has an opportunity to perform suitable work and fails to accept or report for such work due to illness, injury or other temporary physical or mental incapacity.
(g) An individual will be considered not available for work if he or she fails or refuses to seek the type of work required by the Director pursuant to section (1) of this rule.
(h) Providing the individual is otherwise eligible for benefits pursuant to OAR 471-030-0036(3)(a) through (g), a person who has been found to be qualified for benefits under the provisions of ORS 657.176(2)(f) or (g) or 657.176(9)(b)(A) shall be considered available for work only during weeks in which the individual is enrolled in and participating in a recognized drug or alcohol treatment program if such participation was a condition in the determination to allow benefits. This provision does not apply if the individual has satisfactorily completed the course of treatment in accordance with the terms and conditions of the recognized treatment program.
(A) An individual is participating when engaged in a course of treatment through a recognized drug or alcohol rehabilitation program;
(B) A recognized drug or alcohol rehabilitation program is a program authorized and licensed under the provisions of OAR chapter 415.
(4) Notwithstanding the provisions of OAR 471-030-0036(3), an individual who is the parent, step-parent, guardian or other court/legally-appointed caretaker of a child under 13 years of age or of a child with special needs under the age of 18 who requires a level of care over and above the norm for his or her age, who is not willing to or capable of working a particular shift because of a lack of care for that child acceptable to the individual shall be considered available for work if:
(a) The work the individual is seeking is customarily performed during other shifts in the individual's normal labor market area as defined by OAR 471-030-0036(6); and
(b) The individual is willing to and capable of working during such shift(s).
(5) (a) For purposes of ORS 657.155(1)(c) an individual is actively seeking work when doing what an ordinary and reasonable person would do to return to work at the earliest opportunity. In determining whether an individual is conducting an active search for work, the Employment Department may consider among other factors, length of unemployment, economic conditions in the individual's labor market and prospective job openings, weather conditions affecting occupations or industries, seasonal aspects of the individual's regular occupation, expected date of return to work in regular occupation, seniority status of individual, registration with a union hiring hall and normal practices for obtaining the type of work which the individual is seeking pursuant to section (1) of this rule.
(b) For an individual on temporary layoff of four weeks or less with the individual's regular employer:
(A) If the individual had, as of the layoff date, been given a date to return to work, such individual is actively seeking work by remaining in contact with and being capable of accepting and reporting for any suitable work with that employer for a period of up to four calendar weeks following the end of the week in which the temporary layoff occurred. After four calendar weeks have passed following the week in which the temporary layoff occurred, the individual must seek work with other employers in addition to the individual's regular employer.
(B) If the individual had not, as of the layoff date, been given a date to return to work, such individual must immediately actively seek work with other employers, including temporary work opportunities, beginning with the week following the end of the week in which the temporary layoff occurred.
(c) For an individual on temporary layoff of more than four weeks with the individual's regular employer: such individual must immediately actively seek work with other employers, including temporary work opportunities, beginning with the week following the end of the week in which the temporary layoff occurred.
(d) For an individual who is a member in good standing of a union that does not allow members to seek non-union work, such individual is actively seeking work by remaining in contact with that union and being capable of accepting and reporting for work when dispatched by that union.
(6)(a) An individual's normal labor market shall be that geographic area surrounding the individual's permanent residence within which employees in similar circumstances are generally willing to commute to seek and accept the same type of work at a comparable wage. The geographic area shall be defined by employees of the adjudicating Employment Department office, based on criteria set forth in this section;
(b) When an individual seeks work through a union hiring hall, the individual's normal labor market area for the work sought is the normal referral jurisdiction of the union, as indicated by the applicable contract.
(7) Nothing in this rule shall prohibit an individual who is a citizen, permanent legal resident, or otherwise legally authorized to work in the United States from seeking work in other labor market areas in this or any other state or in any other country in which the individual has authorization to work.
(a) When seeking work in any other state, the geographic area shall be defined by local office employees of that state's Work Force Agency, based on the criteria outlined in section (6) of this rule as though the individual maintained a permanent residence in the labor market where the individual sought work.
(b) When seeking work in any country outside the United States
471-030-0125
Drug/Alcohol Adjudication Policy
(1) Purpose. For purposes of any applicable provision of ORS 657.176, this rule establishes policy for adjudicating cases involving the use, sale, possession or effects of drugs or alcohol in the workplace.
(2) Definitions. For the purposes of this rule:
(a) For purposes of ORS 657.176(9)(a)(A), "workplace" means the employer's premises or any place at or in which an individual performs services for the employer or otherwise acts within the course and scope of employment.
(b) For purposes of ORS 657.176(9)(a)(B), an individual "fails or refuses to take" a drug or alcohol test when the individual does not take a drug or alcohol test as directed by the employer in accordance with the provisions of an employer's reasonable written policy or collective bargaining agreement.
(c) For purposes of ORS 657.176(9)(a) and 657.176(13)(d), an individual is "under the influence" of intoxicants if, at the time of a test administered in accordance with the provisions of an employer's reasonable written policy or collective bargaining agreement, the individual has any detectable level of drugs or alcohol present in the individual's system, unless the employer otherwise specifies particular levels of drugs or alcohol in its policy or collective bargaining agreement.
(d) "Performing services for the employer" as used in ORS 657.176(9)(a)(D) and "during work" as used in ORS 657.176(9)(a)(E) mean that an employee is on duty and is, or is expected to be, actively engaged in tasks as directed or expected by the employer for which the employee will or expects to be compensated with remuneration.
(e) For purposes of ORS 657.176(9)(a)(F), an individual "tests positive" for alcohol or an unlawful drug when the test is administered in accordance with the provisions of an employer's reasonable written policy or collective bargaining agreement, and at the time of the test:
(A) The amount of drugs or alcohol determined to be present in the individual's system equals or exceeds the amount prescribed by such policy or agreement; or
(B) The individual has any detectable level of drugs or alcohol present in the individual's system if the policy or agreement does not specify a cut off level.
(f) An individual fails a test for alcohol or unlawful drugs when the individual tests positive as described in subsection (e) of this section.
(g) For purposes of ORS 657.176(9) and 657.176(13), "unlawful drug" means a drug which is unlawful for the individual to use, possess, or distribute under Oregon
(h) "Connection with employment" as used in ORS 657.176(9)(a)(F) means where such positive test affects or has a reasonable likelihood of affecting the employee's work or the employer's interest and/or workplace.
(i) For purposes of ORS 657.176(9)(b)(A):
(A) "Recognized drug or alcohol rehabilitation program" means a program authorized and licensed under the provisions of OAR chapter 415, or authorized and licensed under similar provisions in another state.
(B) "Documentation of participation in the program" means a signed statement by an authorized representative of the recognized program that the individual is/was engaged in a course of treatment.
(3) For purposes of ORS 657.176(9)(a), (10), and 657.176(13)(d), a written employer policy is reasonable if:
(a) The policy prohibits the use, sale, possession, or effects of drugs or alcohol in the workplace; and
(b) The employer follows its policy; and
(c) The policy has been published and communicated to the individual or provided to the individual in writing; and
(d) When the policy provides for drug or alcohol testing, the employer has:
(A) Probable cause for requiring the individual to submit to the test; or
(B) The policy provides for random, blanket or periodic testing.
(4) Probable Cause for Testing. For purposes of ORS 657.176(9)(a), an employer has probable cause to require an employee to submit to a test for drugs and/or alcohol if:
(a) The employer has, prior to the time of the test, observable, objective evidence that gives the employer a reasonable basis to suspect that the employee may be impaired or affected by drugs or alcohol in the workplace. Such evidence may include, but is not limited to, bizarre behavior in the workplace, a change in productivity, repeated tardiness or absences, or behavior which causes an on-the-job injury or causes substantial damage to property; or
(b) The employer has received credible information that a worker uses or may be affected by drugs or alcohol in the workplace; or
(c) Such test is required by applicable state or federal law, or an applicable collective bargaining agreement that has not been declared invalid in final arbitration; or
(d) Such test is required or allowed pursuant to a reasonable written last chance agreement.
(5) Random, blanket and periodic testing. For purposes of ORS 657.176(9) and (10):
(a) A "random test for drugs and/or alcohol" means a test for drugs and/or alcohol given to a sample drawn from a population in which each member of the population has an equal chance to be selected for testing.
(b) A "periodic test for drugs and/or alcohol" means a drug and/or alcohol test administered at various intervals.
(c) A "blanket test for drugs and/or alcohol" means a test for drugs and/or alcohol applied uniformly to a specified group or class of employees.
(6) For purposes of ORS 657.176(9)(a) and 657.176(13)(c), no employer policy is reasonable if the employee is required to pay for the cost of the test.
(7) For purposes of ORS 657.176(13)(c), a last chance agreement is a document signed by the employee for the condition of continued employment and is reasonable if:
(a) It is written; and
(b) It contains only reasonable conditions. Reasonable conditions include, but are not limited to, agreeing to remain drug or alcohol free; participating in a rehabilitation program; participating in an employee assistance program, or other similar program; submitting to random, blanket, or periodic drug or alcohol testing to demonstrate that the employee remains drug or alcohol free.
(c) A term requiring an employee to pay for any of the cost of participation in a rehabilitation program is reasonable only if the cost is reasonable in consideration of the employee's ability to pay.
(d) A term requiring an employee to pay for any of the cost of a drug or alcohol test is not a reasonable condition.
(8) Failure to Apply/Failure to Accept:
(a) A requirement that job candidates submit to a pre-employment drug or alcohol test does not make the work unsuitable for purposes of ORS 657.176(2) and 657.190.
(b) If, after being referred by the Employment Department, an individual does not apply for otherwise suitable work because the employer requires a pre-employment drug or alcohol test, the individual has committed a disqualifying act, unless the individual is required to pay for costs associated with the drug or alcohol test.
(c) If an individual does not accept an offer of otherwise suitable work because the employer requires pre-employment drug or alcohol testing, the individual has committed a disqualifying act, unless the individual is required to pay for the costs associated with the drug or alcohol test.
(9) The employee is discharged or suspended for committing a disqualifying act if:
(a) The employee violates or admits a violation of a reasonable written employer policy governing the use, sale, possession or effects of drugs, marijuana, or alcohol in the workplace, unless in the case of drugs, other than marijuana, the employee can show that the violation did not result from unlawful drug use.
(b) In the absence of a test, there is clear observable evidence that the employee is under the influence of alcohol in the workplace.
(10) Procedures for testing. For purposes of ORS 657.176(9)(a) and 657.176(10):
(a) In the case of a positive blood or urine test for drugs or alcohol, in order to determine whether an individual fails a test, is under the influence, or tests positive, an initial test must be confirmed by a test conducted in a federal or state licensed clinical laboratory.
(b) In the case of a positive breathalyzer test for alcohol, a confirming test is not required.
(11) If the employer discharges or suspends an employee because of use, sale, or possession of drugs or alcohol in the workplace and the employer has no written policy regarding the use, sale, or possession of drugs or alcohol in the workplace, the provisions of OAR 471-030-0038 apply.
Stat. Auth.: ORS 657.610
Stats. Implemented: ORS 657.176 & Ch. 792, OL 2003 (SB 916)
Hist.: ED 17-2003, f. 12-31-03, cert. ef. 1-4-04; ED 5-2006, f. 3-9-06, cert. ef. 3-12-06
Stats. Implemented: ORS 657.176 & Ch. 792, OL 2003 (SB 916)
Hist.: ED 17-2003, f. 12-31-03, cert. ef. 1-4-04; ED 5-2006, f. 3-9-06, cert. ef. 3-12-06
471-030-0126
Absence Due to Alcohol or Drug Use
(1) "Drug" has the meaning given in ORS 475.005(6);
(2) "Documentation of program participation" means a signed statement by an authorized representative of the recognized program that the individual is engaged in a course of treatment;
(3) "Participation" means to be engaged in a course of treatment through a recognized drug or alcohol rehabilitation program;
(4) "Recognized alcohol rehabilitation program" means a program authorized and licensed under the provisions of OAR chapter 415, or authorized and licensed under similar provisions in another state;
(5) "Recognized drug rehabilitation program" means a program authorized and licensed under the provisions of OAR chapter 415, or authorized and licensed under similar provisions in another state.
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