Workers’ compensation laws exist to protect and support workers suffering from on-the-job injuries, but the decision to file a claim might not be simple for an undocumented immigrant working in the United States. Employee rights, employer rights, and immigration laws can complicate the claims process, but in California, all workers have a right to claim workers’ compensation benefits. Here’s a brief guide to understanding how immigration status could affect your claim.
FEDERAL LAW VS. STATE LAW
The United States Immigration Reform and Control Act of 1986 deems it unlawful for an employer to hire an individual who is unauthorized to work in the United States. At the same time, the California Labor Code Section 1171.5 states that all workers, regardless of immigration status, are eligible for the same rights and protections, including the right to collect workers’ compensation benefits.
California law dictates that all injured workers are entitled to workers’ compensation benefits, provided that the worker:
- Is an employee
- Is employed by a company that has (or should have) workers’ compensation insurance
- Has a work-related illness or injury
- Meets the state’s deadlines for reporting the injury and filing the claim
The benefits available to all workers include:
- Medical treatment for work-related illness or injury
- Temporary disability benefits
- Permanent disability benefits
If an employer does not carry workers’ compensation insurance, workers can still apply for benefits through California’s Uninsured Employers Benefit Trust fund, which pays claims to the worker and collects reimbursement from the employer.
HOW CAN IMMIGRATION STATUS AFFECT A WORKERS’ COMPENSATION CASE?
While undocumented workers are legally entitled to workers’ compensation benefits, there are some benefits unavailable to them because of their immigration status.
In the event of a workplace injury, an employer can offer the injured worker “light duty or modified work” so he or she can keep working while they recover. The primary treating physician (PHP) determines the restrictions, and the employer determines whether they have work within those restrictions to offer the injured worker. If the employer cannot provide light duty or modified work, the worker may receive temporary disability benefits until he or she is able to return to work. Similarly, if an employee suffers a permanent disability from a work injury and the employer cannot offer any permanent work due to the disability, the worker is eligible for supplemental job displacement benefits. This benefit is a $6000 voucher for education and job retraining expenses.
If it comes to light that the injured worker does not have authorization to work in the United States, it is illegal for the employer to continue to offer further work, including light duty or modified work. If the undocumented worker is denied further work due to their immigration status, he or she is not eligible for temporary disability benefits or supplemental job displacement benefits.
IMMIGRATION AND WORKERS’ COMPENSATION FRAUD
Employers or insurers might move to dismiss a workers’ compensation claim from an undocumented worker by claiming workers’ compensation fraud. What they won’t mention is that the rules against fraud in workers’ compensation claims are limited to the claim itself, and false statements relating to immigration status are not relevant. Examples of workers’ compensation fraud include:
- Making up an injury to receive workers’ compensation benefits
- Exaggerating an injury to receive workers’ compensation benefits
- Claiming a non-work related injury is work-related in order to receive workers’ compensation benefits
Falsely claiming the right to work in the United States is not considered workers’ compensation fraud and does not affect your right to receive medical treatment or permanent disability benefits.
CAN AN UNDOCUMENTED WORKER SUE AN EMPLOYER?
Yes. If an employer refuses to cooperate with a claim or threatens to retaliate, the undocumented worker has the right to sue. California law AB 263 prohibits employers from using threats related to immigration status against workers exercising their labor rights, including the right to claim workers’ compensation benefits. This is one of several laws that California has passed to protect undocumented workers, who make up about 9 percent of the state’s labor force, from employer exploitation.
WORKERS’ COMP CLAIMS FOR UNDOCUMENTED WORKERS IN SAN DIEGO
Navigating the workers’ compensation system is complicated enough for legal employees in California—undocumented workers face further difficulties, especially if they file their claim without legal assistance. At The Law Office of Matthew Russell, we fight hard for injured workers in San Diego and Imperial County, regardless of immigration status.
If you’ve been hurt at work and want help getting the benefits you’re entitled to, give us a call at
(619) 544-1506 to set up a consultation today.
Para hablar con alguien en español, por favor usar este número telefónico (619) 544-1506 .