injured at work

Undocumented Workers Entitled to Workers’ Compensation Benefits

Update

Every employer must have workers’ compensation insurance covering any workplace illness or injury.  Workers compensation provides specified benefits to injured workers regardless of fault so long as the injury arises out of the employment or occurred in the course of the employment.  Employers who do not have workers’ compensation insurance are subject to very serious fines.

What happens to an injured employee when the employer does not have workers’ compensation insurance?  The employee can petition the Workers Compensation Appeal Board for benefits under the state’s Uninsured Employers Fund and the Subsequent Injuries Benefits Trust Fund.  The employer may be required to reimburse the fund—plus penalties—but the employee receives the workers’ compensation benefits.

Undocumented Workers Entitled to Workers’ Compensation Benefits

Are undocumented workers entitled to workers’ compensation benefits? Yes.  But there was some question as to whether undocumented workers could receive workers’ compensation benefits through the Uninsured Employers Fund.  After all, the UEF is a state-run fund.  Allowing undocumented workers to receive benefits through the UEF means the state will be providing undocumented workers benefits.  But the UEF funds don’t come directly from the state.  It is funded by a surcharge on all insured employers and self- insured employers, by penalties to non-compliant employers, and by recoveries from uninsured employers for actual worker injuries.

SB 623 clarifies that undocumented workers are entitled to workers’ compensation benefits even if the employer is uninsured.  Newly enacted Labor Code sections 3733 and 4756 declare that it is in the best interest of the State of California to provide a person with workers’ compensation benefits regardless of his or her citizenship or immigration status.

The law specifically states: “A person shall not be prohibited from receiving compensation paid or payable from the Uninsured Employers Benefits Trust Fund [or from the Subsequent Injuries Benefits Trust Fund] solely because of his or her citizenship or immigration status.”  The new law overrides a California regulation that said “nonimmigrant aliens” are not eligible for benefits.  Because the new law says it is “declaratory of existing law,” undocumented workers with currently pending cases will be entitled to workers’ compensation benefits.

Is that a problem?  Not in my opinion.

Workers compensation is a no-fault system.  It is intended to provide benefits to employees who have been injured at work.  Employees give up the right to punitive damages and emotional distress damages in exchange for a more expedient process to ensure the worker receives the medical care s/he requires.  Although it is illegal to work in the United States without proper authorization, undocumented workers should not be punished because they are injured on the job.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

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