The interaction between federal immigration law and state law can be complex. This applies even with workers’ compensation issues. California Labor Code Section 1171.5 provides that “all protections, rights and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status . . . who have been employed” in California. Therefore, it is clear that even if a worker is undocumented, he or she is probably still entitled to workers’ compensation. The exception of “any reinstatement remedy prohibited by federal law” was included to prevent California labor provisions from conflicting with federal immigration law. The question can then become exactly what benefits is an employer required to extend when the injured worker is an illegal immigrant?
Case law indicates that an undocumented worker may not be entitled to temporary disability payments. In Cudibo v. Leemar Enterprises and Esparza vs. Barrett Services, it was determined by the WCAB panel that the undocumented workers in those cases were not entitled to temporary disability benefits. There, it is important to note that the employers had information demonstrating the worker’s undocumented status. The employers were also able to show they were willing and able to provide a return to regular or modified work. However, it was determined that the employers were not liable to pay temporary disability even though the worker’s doctors had released them for work, as the employers were unable to allow them to return to work, due to their undocumented status.
Normally, an injured worker may be entitled to a Supplemental Job Displacement Voucher (SJDV) if the injury causes permanent partial disability and the employee does not return to work within sixty days of the termination of temporary disability. The purpose of the voucher is to provide educational school or supplemental training for the injured worker, which the worker may seek at state-approved schools. Under Labor Code Section 4658.5, the amount of the voucher will cost 6,000 for injuries occurring after1/1/2013.
Therefore, when combining federal and state law, is the employer responsible for providing an SJDV if the employer is precluded from allowing the employee from returning to work due to the worker being an undocumented worker? Logically it would appear that as an employer would not be allowed to permit the worker to come back to work. Therefore, the injured, undocumented worker may not be entitled to an SJDV if appropriate work is available. In the absence of guidance from case law, this area is unresolved.
This area of the law is not as developed and clear as other areas involving workers’ compensation. I am thoroughly experienced, and can answer your questions about your rights and responsibilities regarding undocumented workers and workers’ compensation claims. Contact me at (714) 516-8188 or email [email protected] to set up a consultation to discuss your business and its individual needs.