States may bar workers comp for illegal immigrants
This is a refrain from recent years: state legislators who want to screw illegal workers who are injured or die on the job. Not only do these proposals violate a standard of fairness, but they threaten to open employers up to tort suits outside the workers comp system. Very capable Henry Ceniceros of Business Insurance describes proposals in Georgia, Montana, New Hampshire and South Carolina.
His article in full.
States may bar comp for illegal immigrants
With conservative lawmakers in control in several states, more legislation is being introduced that would deny workers compensation benefits to illegal immigrants who are hurt on the job. And while such efforts have failed in recent years, today's changed political climate could result in some of that legislation becoming law this time around, some say.
Bills that would bar illegal immigrants from collecting workers comp benefits are pending in Georgia, Montana, New Hampshire and South Carolina.
There is growing demand from legislators and their staff for information on barring illegal immigrants from collecting workers comp benefits, said Ann Morse, program director, immigrant policy project for the bipartisan National Conference of State Legislatures in Washington.
“It seems to be making a resurgence this year,” Ms. Morse said. “It just seems like it's heating up right now.”
In the absence of federal immigration reform, state legislators will continue to step forward with local solutions, said a NCSL report released Jan. 13. NCSL found that in 2010, 46 state legislatures and the District of Columbia enacted or adopted 333 laws or resolutions addressing immigration.
Previous efforts to bar illegal immigrants from collecting workers compensation have failed in part because of objections to their unintended consequences for employers, observers say. For example, such a change would deprive employers of workers compensation's exclusive remedy protection, exposing employers to civil litigation over worker injuries.
“Most legislators (eventually) realize they are shooting themselves in the foot if they enact this kind of legislation,” said Rebecca Smith, a staff attorney who tracks workers compensation legislation affecting immigrants for the New York-based National Employment Law Project, a worker support organization.
But recently introduced bills that would restrict providing workers comp benefits to illegal immigrants have a greater chance of passing than in the past because of increased political support, said Keith Bateman, vp of workers compensation at the Des Plaines, Ill.-based Property Casualty Insurers Assn. of America.
“With the increased strength of the very conservative wing of the Republican party, the chances are better this year,” Mr. Bateman said.
In Montana, where systemwide workers comp reform efforts are under way, legislators on Jan. 19 approved H.B. 71 by a 69-31 vote. The bill, sponsored by Rep. Gordon Vance, R-Bozeman, now must be considered by the state Senate.
The bill would require insurers to establish processes to ensure that wage-loss or medical benefits for work-related injuries would not be paid to illegal immigrants, according to a state fiscal note. The bill does not specify potential responsibilities for self-insured employers, and Rep. Vance did not return a call seeking comment.
In South Carolina, meanwhile, Republican lawmakers on Jan. 11 introduced S.B. 21, which would restrict illegal immigrants from receiving workers comp benefits.
And in Georgia, a Republican-backed bill, S.B. 7, also would ban illegal immigrants from receiving wage-loss or medical benefits for work-related injuries.
Such legislation could expose employers to legal and insurance problems, said Alissa C. Atkins, a workers comp defense attorney at David & Rosetti L.L.P. in Atlanta. Illegal immigrants barred from accessing the workers comp system could take their claims into the tort system, where employers are exposed to awards that are capped under the workers comp system, Ms. Atkins and others said.
“That is the whole point of the Georgia workers comp act, that the employers get the benefit of the exclusive remedy argument,” Ms. Atkins said. “And if we are taking that away, that opens a can of worms of potential for pain and suffering (awards) which is not allowed under the Georgia workers comp act.”
Should that occur, employers could be pushed to tap their general liability policies rather than their workers comp coverage, Ms. Atkins said.
One solution could be to craft companion legislation that also would prohibit illegal immigrants from taking work injury claims before a civil court. But that could raise constitutional challenges, she said.
“It's a tricky thing for drafters to try and do that, because they can't deny people access to the courts,” Ms. Smith of NELP said.
There also is a public policy problem with stripping illegal immigrants of workers compensation benefits, said Bruce C. Wood, associate general counsel and director of workers comp for the American Insurance Assn. in Washington. Adopting such a measure could encourage some employers to hire illegal immigrants knowing they would get a free pass should an employee get injured, Mr. Wood said.
“We find that (potential) policy result to be troubling,” Mr. Wood said. The AIA opposes adoption of laws barring illegal immigrants from receiving workers comp benefits, he notes.
Although past legislation initially may have received significant support, the potential for it to open employers to civil suits and encourage some employers to hire illegal immigrants eventually convinced lawmakers to rethink their support for them, Mr. Wood said. “There are those interests that maybe think longer and harder about the merit of the issue and then begin to think otherwise,” Mr. Wood said.
One bill attempts to address some of those issues.
Legislation introduced in New Hampshire early this month by Rep. William Infantine, R-Hillsborough, would limit workers comp benefits for undocumented immigrants, while also discouraging employers from hiring such individuals.
H.B. 236 would limit work comp benefits to medical expenses and “remedial payments” when an illegal immigrant is injured on the job. It also would require employers or insurers to pay for workers comp benefits if they knew, or should have known, that an injured worker resided in the country illegally.
“There are probably some unscrupulous employers that will hire these people knowing they are not legal to work here,” Rep. Infantine said. “There are also situations where the employee will provide faulty (residence) information. So I am trying not to make it so severe that it borders on being morally wrong.”