Or. Admin. R. 839-005-0170

Current through Register Vol. 63, No. 6, June 1, 2024

Section 839-005-0170 - Reasonable Safety Accommodation; Certification; Records Confidential

(1) A "reasonable safety accommodation" for a victim of domestic violence, harassment, sexual assault or stalking as provided in ORS 659A.290 may include, but is not limited to, a transfer, reassignment, modified schedule, use of available paid leave from employment, unpaid leave from employment, changed work telephone number, changed work station, installed lock, implemented safety procedure or any other adjustment to a job structure, workplace facility or work requirement in response to actual or threatened domestic violence, harassment, sexual assault or stalking.

(2) Use of available paid and unpaid leave from employment is provided for in ORS 659A.270-.285 and OAR 839-009-0325 through 839-009-0365.

(3) "Undue hardship" for purposes of ORS 659A.290 is defined at ORS 659A.121: An accommodation imposes an undue hardship on the operation of the business of the employer if the accommodation requires significant difficulty or expense, considering the following:

(a) The nature and the cost of the accommodation needed.

(b) The overall financial resources of the facility or facilities involved in the provision of the accommodation, the number of persons employed at the facility and the effect on expenses and resources or other impacts on the operation of the facility caused by the accommodation.

(c) The overall financial resources of the employer, the overall size of the business of the employer with respect to the number of its employees and the number, type and location of the employer's facilities.

(d) The type of operations conducted by the employer, including the composition, structure and functions of the workforce of the employer and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the employer.

(4) Prior to making a reasonable safety accommodation, an employer may require an individual to provide certification that the individual is a victim of domestic violence, harassment, sexual assault, or stalking within a reasonable time after receiving the employer's request. Any of the following constitutes sufficient certification:

(a) A copy of a police report indicating that the individual was or is a victim of domestic violence, harassment, sexual assault or stalking as defined in OAR 839-005-0160 and ORS 659A.290; or

(b) A copy of a protective order authorized by ORS 30.866, 107.095(1)(c), 107.700 to 107.735, 124.005 to 124.040 or 163.730 to 163.750; or any other order that restrains an individual from contact with an individual; an order authorized by ORS 30.866, 107.095(1)(c), 107.700 to 107.735, 124.005 to 124.040 or 163.730 to 163.750) or other evidence from a court or attorney that the employee appeared in or is preparing for a civil, criminal or administrative proceeding related to domestic violence, harassment, sexual assault or stalking; or

(c) Documentation from an attorney; law enforcement officer (defined as all police, corrections, and parole and probation officers who are included in the Public Safety Standards and Training Act as described in ORS 181.610 and 181.651); health care professional (defined as a physician or other health care practitioner who is licensed, certified or otherwise authorized by law to provide health care services); licensed mental health professional or counselor; member of the clergy; or victim services provider (defined at ORS 659A.270(8) as a prosecutor-based victim assistance program or a nonprofit program offering safety planning, counseling, support or advocacy) that the individual was or is undergoing treatment or counseling, obtaining services or relocating as a result of domestic violence, harassment, sexual assault or stalking.

(5) All records and information kept by an employer regarding a reasonable safety accommodation made for an individual are confidential and may not be released without the express permission of the individual, unless otherwise required by law.

(6) Consistent with ORS 659A.306, the employer must pay the cost of any medical verification related to ORS 659A.290 or these rules that is not covered by insurance or other benefit plan.

(7) If the State of Oregon has knowledge, or reasonably should have knowledge, that its employee is a victim of domestic violence, harassment, sexual assault or stalking and that any direct or indirect communication to the employee related to the victimization of the employee is made or attempted to be made in the workplace, the State of Oregon shall immediately inform the employee and offer to report the communication to law enforcement.

(8) The State of Oregon shall annually inform all of its employees of the provisions of ORS 659A.290.

(9) Pursuant to ORS 659A.030(1)(g), it is an unlawful employment practice for any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts in violation of ORS 659A.290 or to attempt to do so.

Or. Admin. R. 839-005-0170

BLI 9-2010, f. & cert. ef. 2-24-10; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12; BLI 3-2012, f. & cert. ef. 2-8-12; BLI 14-2013, f. & cert. ef. 12-30-13; BLI 11-2015, f. & cert. ef. 8/4/2015

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.290