By taking one simple pass through any news source, it's obvious that we have a growing national dilemma with immigration--an issue that becomes more heated and emotional as the subject of workers' compensation for undocumented workers is brought into the debate.
The issue of workers' compensation benefits becomes complex as state statutes clash with the federal immigration law. Under federal law, undocumented immigrants cannot lawfully work in the United States and employers are prohibited from knowingly hiring them. Once hired, however, most states do provide workers' compensation benefits regardless of immigration status.
Wyoming is currently the only state that has a statute prohibiting illegal immigrants from receiving workers' compensation benefits. Georgia, Montana, New Hampshire, Ohio and South Carolina are considering passing bills that would deny workers' compensation benefits to undocumented workers. The state of Arizona has unsuccessfully introduced bills the past two legislative sessions. Silent on the issue are Alaska, Delaware, Indiana, Maine, Missouri, Rhode Island, South Dakota, Vermont, Washington, West Virginia and Wisconsin.
All other states expressly include undocumented workers in their workers' compensation statues.
State workers' compensation laws are designed to provide (among many other things) wage replacement for periods of disability caused by workplace injuries or illnesses, and promote return to work if possible. Although federal law can still impact what benefits they may receive, courts have generally ruled in favor of entitling workers' compensation benefits to the undocumented worker, some with limitations. Courts in California, Nebraska, and Oregon, for instance, have upheld decisions to deny vocational rehabilitation benefits to undocumented workers.
We may begin to see fewer differences between state and federal law. On December 23, 2010, in the case Asylum Company and Insurance Designers of Maryland v. District of Columbia Department of Employment Services, the District of Columbia Court of Appeals ruled that an undocumented worker is entitled to temporary total disability benefits.
The District's administrative law judge found the undocumented worker, Palemon Cassarubias Gonzales, was eligible for workers' compensation. On appeal, the employer argued that the federal Immigration Reform and Control Act of 1986 (IRCA) pre-empted the workers' compensation law. IRCA bars employers from hiring individuals, including illegal aliens, who are not entitled to work in the United States. The employer, who did not know his employee was illegal, argued that IRCA makes an undocumented workers' hire illegal and bars him from receiving workers' compensation benefits.
Because other state court rulings have observed that, by not providing benefits to undocumented workers, some employers could exploit a financial incentive to hire them in the first place knowing they may not have to pay workers' compensation benefits, the District of Columbia Court of Appeals ruled that it could not find a reason to disagree with other state court. In spite of the IRCA argument, it upheld the previous decision to provide Gonzales with benefits.
MISSING THE POINT
Over the past two years, the government has stepped up enforcement for employee verification. The Department of Homeland Security views E-Verify as a critical step to keep employers in compliance with immigration employee verification requirements. An Internet-based system, it compares information to confirm whether or not a job applicant is a legal U.S. resident.
It's a good concept, but E-Verify alone will not force an undocumented worker to leave the country or to stop pursuing employment with false identification. It is a misplaced effort that doesn't address the problem for employers: What to do with an injured undocumented worker.
There are more than 8 million undocumented workers and, whether the employer is aware of their illegal status or not, the injured worker deserves to be covered by workers' compensation benefits. Legally and morally, it is the right thing to do.
As we celebrate the 100th anniversary of workers' compensation, let's not forget the intent-- providing injured workers with benefits to assist them as they recover, while freeing the employer from the threat of litigation, thus allowing both sides to achieve a positive result.
I've never seen anything to suggest that someone should be excluded from receiving medical and indemnity benefits because of their citizenship status. It's inappropriate and, in my opinion, discriminatory.
MARK NOONAN is a managing principal and the senior knowledge manager for workers' compensation for the Casualty Practice within Integro Insurance Brokers.
The opinions expressed in this column are the author's and do not reflect the position of this publication or Integro Insurance Brokers.
(Editor's note: In part two of this column next month, Mark will cover the issue of benefits for injured undocumented workers from the viewpoint of the workers and employers, and will offer options for employers.)
Read more at the WorkersComp Forum homepage.
March 3, 2011
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