Can a worker who is in the United State illegally receive workers compensation? | LabourBlawg

Can a worker who is in the United State illegally receive workers compensation?

by Andrew Miller on December 28, 2013

migrant workersThe question of whether illegal immigrants are eligible to receive worker’s compensation benefits is complex.  The status of persons in the United States illegally is tenuous.  The rules regarding illegal immigrants are in flux and vary from state to state and from situation to situation.  However, the basic dilemma for working illegal immigrants is that they are breaking the law just by being in the United States.  Furthermore, because their status is illegal, they do not have the right to work in the United States.  So what happens if an illegal immigrant is injured in the workplace?

Worker’s Compensation

Generally speaking, if an employee is injured in the workplace and  the employer subscribes to its state’s worker’s compensation program, the employee is eligible for worker’s compensation benefits.  Benefits vary from state to state.  In New Jersey, for example, benefits include medical treatment, temporary disability benefits, and permanent disability benefits.

 Denying Worker’s Compensation Benefits

In most cases, a person is eligible for worker’s compensation benefits if he or she is an employee and the injury or illness was work related.  According to a New Jersey Worker’s compensation attorney, the New Jersey Worker’s Compensation Act defines an “employee” as a person “to whom the employer is obligated to pay compensation.”  There is no language excluding illegal immigrants from receiving worker’s compensation benefits.  Thus, even if an employee is an illegal immigrant and should never have been hired, he or she is still eligible for worker’s compensation benefits.  While most state worker’s compensation statutes are silent on the issue of illegal immigrants, some states do address it.  In Wyoming, for example, the worker’s compensation statute contains language that specifically excludes illegal immigrants from the definition of “employee.”  On the other hand, Florida’s worker’s compensation statute clearly intends to include illegal immigrants as it defines “employee” as anyone who receives compensation from an employer, whether “lawfully or unlawfully employed.”

Once an employee files a claim, the employer or insurance carrier will decide whether or not to accept the claim.  Typical reasons for denying a claim include:

  1. Employee failed to file the claim in a timely manner
  2. Dispute as to whether the injury or illness was work-related
  3. Dispute as to the extent of medical treatment

However, unless a state’s worker’s compensation law specifically prohibits illegal immigrants from receiving worker’s compensation benefits, an employer or carrier cannot deny a claim on that basis.


Alternative to Worker’s Compensation

One of the purposes of worker’s compensation plans is to limit liability for employers by preventing injured employees from filing personal injury lawsuits.  Worker’s compensation legislation provides that filing a worker’s compensation claim is the exclusive remedy for injured employees. Thus, injured employees cannot file lawsuits against employers to recover damages.  However, in cases where an employee is deemed ineligible for worker’s compensation benefits, that employee may still be able to recover damages from a negligent employer by pursuing a personal injury lawsuit in court.  The potential liability to an employer in a  personal injury lawsuit is significantly higher than the amount that a self-insured employer or an insurance carrier would have to pay pursuant to a worker’s compensation claim. Arguably, the excluded illegal immigrants are in a better position than other injured workers as they may be able to receive significantly higher compensation for workplace injuries.

Illegal immigrants are eligible to receive several different types of public and private benefits despite their illegal status.  What is the argument for allowing this?



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