Illegal Workers May Have Right to Comp Benefits

The Center for Immigration Studies estimates about five percent of workers in the U.S. are illegal immigrants. In some industries, such as food service and construction, it’s much higher—18 percent for construction. If you either knowingly or inadvertently hire an illegal worker, he or she could be entitled to workers’ compensation benefits if injured on the job.

Federal law expressly forbids immigrants from entering or working in the country illegally; it also prohibits employers from hiring illegal immigrants. However, state law, which regulates workers’ compensation, usually requires employers to pay for medical treatment and reimburse lost wages after a worker suffers a work-related injury or illness. In most states, workers’ compensation statutes make no distinction between employees who work legally and those who are illegally working in this country.

Sometimes, an employer will discover that an employee was working in the country illegally only after an injury occurs, and discrepancies in his/her documentation come to light. What do you do in those cases?

Although the federal government has jurisdiction over immigration, regulation of workers’ compensation falls to the state, so your legal obligations vary according to state workers’ compensation law.

Here’s what each state’s workers’ compensation law says about coverage for illegal immigrants:

(Source: Workers’ Compensation and the Undocumented
Worker, by Thomas R. Lee and Dennis
V. Lloyd, AASCIF News, www.aascif.org/public/
Third_Quarter_2007/undocumented.htm)

As a matter of public policy, the law and courts generally rule that injured illegal workers are entitled to medical and indemnity benefits. However, a workers’ illegal status can make it impossible to receive other workers’ compensation benefits, such as vocational rehabilitation or light-duty work. For example, in a Georgia case, Martines v. Worley & Sons Construction, the contractor offered an injured employee a light-duty job as a truck driver; Martines could not accept the job because he did not have a Georgia drivers license. The administrative law judge found the job unsuitable due to Martines’ inability to obtain a license. However, when the employer appealed, the appeals court ruled that Martines was not entitled to another light-duty job because his inability to take the job was due to his illegal status, rather than  physical condition. (Source: “Illegal Immigrants and the Georgia Workers’ Compensation Act: The Employer/Insurer’s Perspective,” by Bernadett Rosszer, Drew, Eckl & Farnham, State Bar of Georgia Workers’ Compensation Section Newsletter, Winter 2007)

Handling claims from illegal immigrants can create other administrative problems. For starters, fraudulent Social Security numbers, incorrect addresses, unwillingness to work with those they perceive as authority figures for fear of being deported and a lack of checking accounts can complicate claim payments.

Delivering appropriate medical care can present problems as well. Language barriers might make providing healthcare difficult, while transportation problems can make it difficult for patients to get to physical therapy or other follow-up appointments. Living situations can also complicate medical care. As Mary Hawkins, a nurse case worker for Intracorp in Atlanta, told Business Insurance, “…you can’t send someone
home with an infection and an open wound…” if they are living in crowded or impoverished circumstances.

Our recommendations? To avoid this situation, always verify a job applicant’s documents carefully before hiring. And remember your business could be liable if a contractor or subcontractor is uninsured. Ask any business that provides workers to your worksite to provide documentation of workers’ compensation and liability insurance. General contractors should also require any business they subcontract with to name the contractor as an “additional insured” on the subcontractor’s workers’ compensation and liability insurance policies, and require a stamped certificate of insurance as proof. If someone slips through the cracks and you face a claim from an illegal alien, consult with an experienced workers’ compensation attorney.