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Subtleties Abound Regarding Injured Undocumented Workers

Regardless of whether a state allows undocumented workers to recover benefits, there are subtle issues that impact employers' exposure to workers' comp claims, such as light duty return-to-work.

Thursday, September 1, 2011
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Whether your state provides workers' comp benefits for illegal-alien workers, your organization could be affected, says Rusty Watts, a partner in the Atlanta-based office of Swift, Currie, McGhee & Hiers.

Some states provide benefits to illegal aliens hurt on the job, while others have tried to exclude them, says Watts, who will present a session entitled Undocumented Workers: Strategies to Navigate the Legislative Minefield, during the 20th annual National Workers' Compensation and Disability ConferenceĀ® & Expo at the Las Vegas Convention Center from Nov. 9 to 11.

Most states have adopted legislation regarding the employment of undocumented workers. Watts says there are only about 15 states that have not.

"That's a really big difference," he says. "Ten years ago we were talking about all these states grinding through these issues. We've worked our way through that and are now getting into the more subtle areas of undocumented workers on the comp system."

States that have passed measures specifically related to how or whether injured illegal aliens receive workers' comp benefits are now delving into more detailed issues, "such as what happens in a light-duty scenario, or vocational rehab," Watts says. "These states are going to the next level."

Another trend among states is consideration of legislative initiatives regarding undocumented workers that may or may not specifically relate to the workers' comp system.

Ohio, Utah and Montana, for example, have considered proposals specific to the workers' comp system, while Arizona and Georgia have looked at more comprehensive proposals.

"Louisiana is a perfect example, where employers have to verify documents in a way that's maybe above and beyond what federal law had asked," Watts says. "Georgia is a good [example] because there is all kinds of wording in the legislation about harboring undocumented workers or unknowingly hiring them. So some things don't specifically impact the workers' comp act, but do peripherally."

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Impact on Employers

It's important for employers to understand their rights and responsibilities under federal immigration laws, Watts says.

Regardless of whether a state allows undocumented workers to recover benefits, there are subtle issues that impact employers' exposure to workers' comp claims, such as light duty return-to-work.

"The way states are dealing with that is quite varied," Watts said. "Some allow immediate termination of benefits once there is light duty available, while others require job offers to be extended, even though the employer knows the employee can't take the job because he's illegal. So return-to-work light duty is a huge area where we're evolving."

Watts doesn't see the issue of injured undocumented workers going away anytime soon; in fact, quite the contrary.

"It's an election year and this is a flashpoint issue," he says. "I think we're going to hear a ton about it in the next 15 months."

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