The Immigration Reform and Control Act is a federal law requiring employers to verify that all employees are legally eligible to work in the U.S. Undocumented workers (aka “illegal immigrants”) are not legally authorized to work in the U.S. But what happens when an undocumented worker is injured at work? How does their immigration status affect their right to workers’ compensation benefits in Colorado?
Colorado Revised Statutes section 8-40-202 specifically provides that the term employee includes aliens without differentiating between a legal or illegal alien. The courts have held that both legal aliens and illegal aliens are considered employees. Therefore, while it might be illegal for an employer to hire an undocumented worker, if they sustain a compensable injury, the undocumented worker is entitled to workers’ compensation benefits.
Rights to Specific Benefits
Employers have unsuccessfully tried to argue that undocumented workers are ineligible for lost wage benefits because the claimant is “legally disabled” (legally unable to work and the wage loss is due to the lack of documentation). Colorado courts have rejected this argument and held that undocumented workers are still entitled to lost wage benefits. This advances the interests of society because it prevents employers from knowingly hiring undocumented workers and then using their illegal status to avoid paying lost wage benefits.
Undocumented workers are also eligible for permanent total disability benefits (benefits to compensate a claimant who is permanently unable to earn any income due to the work injury). Employers have thus far unsuccessfully tried to argue that a claimant’s permanent total disability is due to the fact that the claimant is not legally eligible for employment. In those cases, the courts concluded that the significant causative factor for the disability was the work injury and not the claimant’s undocumented status. Therefore, if the claimant is employable except for the undocumented status, then there is still a valid argument that they are not permanently totally disabled.
An undocumented worker can also be reimbursed or compensated for providing essential services (home health care services) to an injured worker because the undocumented immigrant is not being “hired” and is just being compensated for services provided.
Termination Due to Illegal Status
Employers have been able to successfully argue for termination of lost wage benefits under workers’ compensation when an injured worker (“claimant”) is terminated for cause due to their undocumented status.
CRS sections 8-42-103(1)(g) and 8-42-105(4) provide that if a claimant is “responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.” A claimant is responsible for their termination when they are at fault for causing a separation in employment. This requires an act within the control (volitional act) by the claimant leading to the termination.
Cases involving undocumented immigrants have held that claimants are responsible for termination when they are terminated for falsifying employment records or are unable to provide valid identification. Providing an employer with false identification and work papers is considered a “volitional act” that constitutes fault under the workers’ compensation termination laws. Even if the employer knew or should have known the claimant was an illegal worker when the worker was hired, the courts have held that the claimant is still responsible for termination and the employer is not barred from seeking the termination of workers’ compensation benefits.
Defenses in Other States
Courts in some other states have held that an undocumented worker is not eligible for certain benefits.
• Alabama: Dependents of a deceased undocumented worker are not eligible to receive workers’ compensation death benefits.
• District of Columbia: Undocumented workers are generally entitled to benefits, but one case held that the undocumented worker committed fraud by using a friend’s social security number and was ineligible for benefits.
• Georgia: Undocumented worker is not entitled to any disability benefits if the reason the worker is unable to work is their illegal status and not the work injury.
• Hawaii: Dependents of a deceased undocumented worker are not entitled to workers’ compensation benefits if the dependents are not living in the U.S.
• Maine: Benefits can be reduced due to an undocumented worker not being able to accept modified employment.
• Michigan: Undocumented workers are only entitled to medical benefits and do not receive any lost wage benefits or permanent disability benefits because of the commission of a crime under the IRC.
• Nebraska: Undocumented workers are not eligible for vocational rehabilitation.
• Nevada: Undocumented workers are not eligible for vocational rehabilitation and can also be denied lost wages if the employer could accommodate restrictions but is unable to provide the modified employment since the worker is undocumented.
• North Carolina: Undocumented worker not entitled to lost wage benefits if reason not working is undocumented status and not the work injury.
• Oregon: Lost wages for undocumented workers are reduced by the amount they could earn doing modified employment if they were documented.
• Pennsylvania: Undocumented workers are eligible for medical benefits but not benefits for lost wages.
• Utah: If an undocumented worker is capable of vocational rehabilitation except for their undocumented status, then they are not entitled to permanent total disability benefits.
To reduce exposure on claims with undocumented workers in Colorado, employers could consider offering modified duty under Worker’s Compensation Rule 6 to terminate lost wage benefits and/or offering permanent employment under C.R.S.Section 8-42-111(3) to bar a claim for permanent total disability benefits. The offer of employment would state that the claimant must present valid legal documentation to begin the employment.
The employer would need to be prepared to provide testimony on its hiring practices, including the process for documenting all workers, and that the IRCA prohibits the hiring of undocumented workers.
Undocumented workers in Colorado are entitled to the same workers’ compensation benefits as other employees. If an undocumented worker was not entitled to workers’ compensation benefits, then immoral employers could hire undocumented workers without the burden of insuring them for workers’ compensation benefits.
This is an unintended consequence that would encourage the hiring of undocumented workers and negate the purpose of the IRCA.
Because of this, the fact that an injured worker is an undocumented worker does not negate their right to benefits.
However, there is a potential reduction in exposure on these claims if the worker is later terminated because of falsifying documentation, as well as, possible affirmative defenses of offering modified duty or permanent employment.
— Ilene Feldmeier is a partner at Pollart Miller.