Limits sought on illegal workers' rights to comp

Courts and lawmakers across the United States increasingly are addressing whether illegal immigrants injured on the job have the right to workers compensation benefits.

Most recently, New York's Third Judicial Department of the State Supreme Court's Appellate Division, for instance, ruled Oct. 30 in Benjamin Amoah vs. Mallah Management L.L.C., that a Ghana citizen injured while working as a parking lot attendant is eligible for wage replacement benefits even though he used someone else's drivers license and Social Security card to obtain employment (see story, page 26).

About 7 million illegal immigrants work in the United States, or about 5% of the country's working population, according to a 2007 study produced by the Center for Immigration Studies, a nonpartisan think tank in Washington.

The Washington-based National Council of La Raza, a Hispanic civil rights and advocacy organization, in a 2008 fact sheet on undocumented workers also reports that about 5.3% of the U.S. labor force is undocumented.

About 55% of illegal immigrants "work on the books," meaning they provided their employer a Social Security card, although the cards often are fraudulent, said Steve Camerata, author of the Center of Immigration Studies report.

In addition to New York, courts in several other states, including California, Florida, Georgia, Minnesota and Pennsylvania, have ruled that the federal Immigration Reform and Control Act adopted in 1986 does not pre-empt state mandates to provide workers comp benefits, explained Rusty Watts, a workers comp defense attorney at Swift, Currie McGhee & Hiers L.L.P. in Atlanta.

That law made it illegal to hire immigrants who do not possess legal work authorization or to continue employing them, and it imposed duties on employers to confirm applicants' right to work.

A related issue that courts nationwide are deciding involves illegal immigrants that have been injured, but completed medical treatment and normally would return to work under light-duty assignments, Mr. Watts said.

Employers and insurers increasingly are attempting to limit their exposure by arguing employers should be allowed to terminate wage benefits in such cases without bringing the worker back to work, Mr. Watts said.

Wage benefits typically are based on a claimant's inability to continue earning because of a work-related disability, he said. But employers and insurers argue that employers should not have to continue paying benefits or provide light-duty employment to illegal immigrants because their inability to work is not due to their injury. Rather, they cannot work because it is illegal for employers to hire them, they argue.

Most of those cases still are working their way up to the appeals court level, Mr. Watts said. But appeals courts in Georgia, Oregon and Pennsylvania already have sided with employers.

Court battles over providing workers comp benefits to illegal immigrants "seem to be narrowing" around whether employers can stop paying indemnity benefits without retaining workers or providing them with vocational rehabilitation that helps them return to work, said Bruce C. Wood, associate general counsel & director of workers compensation for the American Insurance Assn. in Washington.

The issue has prevented payers' normal attempt to provide return-to-work placement for workers that have been injured, said Darrell Brown, workers comp practice lead for Sedgwick Claims Management Services Inc. in Long Beach, Calif.

Normally the objective within the workers comp system is to return injured workers to "full functionality" and place them back in jobs, he said.

But doing so is contrary to laws saying they cannot be returned to work as part of the vocational rehabilitation process, Mr. Brown said.

"If benefits are payable then we pay the benefits," he said. "But when it comes to the aspect of placement we have a bigger issue."

Illegal immigrants are eligible for workers comp benefits in 30 states and "likely covered" in 19 others where statutes or case law stating otherwise do not exist, according to the AIA.

"The fact that many statutes don't even mention aliens...shows you that this has not been an issue until very recently," Mr. Wood said.

Several of the states requiring workers comp benefits for illegal immigrants deny them vocational rehabilitation benefits because they do not have Social Security cards allowing them to obtain legal employment, according to the AIA, which is updating a state-by-state analysis on benefits for illegal immigrants it released in January.

Many states justify providing benefits because disallowing them would only encourage unscrupulous employers to hire more illegal workers so they could avoid paying workers comp insurance premiums, according to the AIA.

Only Wyoming, in a 1999 state Supreme Court ruling, specifically precludes illegal immigrants from receiving workers comp benefits.

Lawmakers in other states such as Michigan and Arizona have introduced legislation in recent years proposing to outlaw workers comp benefits for illegal immigrants. So far, none of those bills has been enacted, observers say.

Arizona lawmakers have introduced bills throughout several years that would have prohibited workers comp benefits to illegal immigrants, sources say.

While efforts in Arizona have not succeeded, the amount of support such measures have received in the state suggests "that more state legislators may now be willing to at least consider denying workers' compensation benefits to illegal aliens," especially in states bordering Mexico, according to the AIA.

The AIA favors payment of full workers comp benefits to legal and illegal immigrants, Mr. Wood said.

"If an employee is good enough to be hired then they are good enough to be paid if they are injured on the job," he said.

"To hold otherwise would be further encouragement for employers to take advantage of undocumented (workers) knowing full well that if they get injured then they are not going to have to meet their statutory obligation to pay benefits," Mr. Wood said.