Author: Bill Wilson
One of the few email discussion lists I participate in is a Yahoo! Groups list called "RiskList." Recently, the topic of discussion was illegal aliens and workers compensation. Some of issues discussed include whether or not they're covered under workers compensation laws and what kind of impact they may be having on loss experience.
This article addresses the issue of whether or not illegal aliens are entitled to benefits under state workers compensation laws. The purpose is not to opine about the situation from a political or social standpoint, nor to comment on construction workmanship issues that have been addressed in the press.
Statistics
According to the Pew Hispanic Center in a 2006 published report, there are probably 11 to 12 million illegal aliens residing in the U.S. today. Demographically, this breaks down to 5.4 million adult males, 3.9 million adult females, and 1.8 million children. In addition, there are 3.1 million children (64% of all children of illegals) who are U.S. citizens, having been born in this country from one or more illegal parents. Illegal immigrants account for almost one-third of all foreign-born U.S. residents and close to 80% originate from Mexico and other Latin American countries.
Of the 9.3 million illegal adults, 7.2 million (77%) are employed and comprise about 5% of the entire U.S. workforce. However, they comprise a far more disproportionate percentage in some industries, such as 24% of farm workers, 17% of cleaning workers, 14% of construction workers, and 12% of food preparers. Within an industry, illegal workers may comprise high percentages of specific (often more hazardous) occupations...e.g., 36% of all insulation workers and 29% of all roofing employees are estimated to be illegal aliens. In general, illegal workers tend to be younger than other workers.
Because of language barriers and lack of training and experience, some experts believe that the exposure to injury may be significantly greater for illegal aliens than other workers. According to an Associated Press story, Mexican workers are about 80% more likely to die from a work injury than native-born workers. In several Southern and Western states, these workers are four times more likely to die than U.S. citizens performing similar jobs.
Given language barriers that might interfere with effective supervision and training, along with the frequent lack of experience, there is a fear that illegal aliens may be at greater risk due to several additional compounding risk factors. For example, because of the reasons many are here, they might be more inclined to take risks not commensurate with their skill levels. In cost-cutting measures that played a role in their hiring to begin with, they may not receive proper safety equipment. And, because they are inclined to avoid attention being directed at their illegal status, they may be hired or assigned to more hazardous jobs by employers who feel they are far less likely to file workers compensation claims....
....which brings us to the topic of this article, which is to answer the question, "Are illegal aliens entitled to state workers compensation benefits?" The short answer to this (as often the case with insurance coverage questions) is, "It depends." In a significant majority of states, illegals ARE entitled to workers compensation benefits. However, this is not true in every state. In addition, the types of benefits or extent of coverage may be restricted in some states depending on a number of factors.
The Workers Compensation Debate
A number of reasons have been advanced for why illegal aliens should or should not be entitled to workers compensation benefits.
AGAINST Benefits....
The Immigration Reform and Control Act (IRCA) should preclude benefits for all illegal aliens.
Illegal aliens cannot enter into legal employment contracts and, since most workers compensation laws define "employee" to be someone hired under a contract of hire, illegals are therefore not technically employees as defined by the law.
It is against public policy to permit a worker who has committed fraud through the use of false identification to collect benefits.
Illegals are not entitled to disability income benefits because they'd be unable to legally work anyway.
If illegal aliens are provided disability benefits, they may be more inclined to file fraudulent (or real) claims that will allow them to return to their home countries while receiving lifetime benefits that would enable a relatively high lifestyle in their countries of origin, thus minimizing them ever seeking gainful employment at home.
FOR Benefits....
Most workers compensation laws are silent with regard to illegal aliens. Those that expressly authorize benefits for aliens, with one exception, are silent as to their legal status. Since such laws can (and do) indicate employment situations that are not compensable, many courts that have ruled that illegals are entitled to benefits have opined that state legislatures could specifically exclude them if they chose to do so (as is the case in at least one state).
If a worker is physically unable to work, as opposed to legally unable to work, he should be entitled to disability and vocational rehabilitation benefits as a matter of law, public policy, and morality.
By making workers compensation benefits available, civil lawsuits are minimized, just as they are with other workers.
If illegals were unable to recover benefits, that would provide an incentive for employers to hire illegal aliens and to devote fewer resources to workplace safety, knowing that many illegals would not file a lawsuit since it could result in deportation.
Answering the Question
Whether or not an illegal alien is entitled to workers compensation benefits will be established in the state statutes or by regulatory or court decision. Are illegal aliens "employees" as defined by most state statutes? If so, are they entitled to all or some of the statutorily-prescribed benefits? In trying to answer these questions, I've constructed a state-by-state chart that references each state's statute, lists any known case law or regulatory ruling, and provides commentary on whether or not it is likely that illegals are entitled to benefits:
Workers Compensation and Illegal Aliens Chart
As you'll see on the chart, most states do allow illegal aliens to claim workers compensation benefits. The only state that expressly excludes benefits by statute is Wyoming. The only state that has excluded benefits across the board by court decision was Virginia, but the decision was subsequently overriden by legislation. The vast majority of other states permit at least the claiming of medical benefits by illegals. Some states (e.g., Georgia, Michigan, and Pennsylvania) attach restrictions to disability benefits. Other states (e.g., California, Nebraska, and Nevada) limit or preclude vocational rehabilitation benefits.
This chart is a work in progress, so information is not currently available for all states, but it is for most. Also, keep in mind that where case law is absent (to the best of our knowledge), any opinion about how statutory law might respond is conjecture on our part, based on how courts in other states have ruled on similar statutory wording. As statutes are reviewed and case law uncovered, this chart will be revised on an ongoing basis. If you are aware of any inaccuracies or missing information, please email it to Bill.Wilson@iiaba.net.
Conclusion
By all indications, the influx of illegal workers is not going away and has, in fact, dramatically escalated in recent years. During the decade of the 1980s, the number of illegal aliens in the U.S. actually fell, from 3.3 million to 2.5 million. In the decade of the 1990s, the illegal population rose to 8.4 million. In the past five years alone, it has increased to the present estimated level of 11-12 million. The financial impact on businesses and the U.S. workers compensation system remains to be seen.
Additional Reading and Other Resources
Illegal Aliens and Workers' Compensation:
• http://www.aascif.org/public/jan_feb_mar06/alien.htm
Statutes and Case Law:
• http://www.workerscompensation.com
Illegal Immigrant Statistics:
• http://pewhispanic.org/files/reports/61.pdf
• http://www.cis.org/currentnumbers
• http://www.uscis.gov/graphics/shared/statistics/publications/ILL_PE_2005.pdf
• http://www.uscis.gov/graphics/shared/statistics/yearbook/index.aspx
Workers Compensation Blogs:
• http://www.workingimmigrants.com
• http://www.workerscompinsider.com
Other Issues and Resources:
• http://en.wikipedia.org/wiki/Illegal_immigration_to_the_United_States