Below is a press release about proposed legislation in Texas. In that state –uniquely — employers can opt out of (elsewhere) mandatory workers comp statutes. This increases the vulnerability of immigrant workers. The law would require employers to cover their day laborers with workers comp.
For day laborers who are illegal immigrants, a guest worker program would probably require that they be employees, rather than independent contractors, and that they be covered by workers comp as well as enjoy all other worker rights.
January 24, 2007
Bill Proposes Workers’ Compensation Coverage for Day Laborers
Recent legislation filed by Rep. Eddie Rodriquez (D-Austin) proposes that day laborers could be entitled to workers’ compensation benefits from a day laborer employer. This legislation tracks the stated goals of the Texas AFL-CIO and other organized labor groups that are once again pushing for mandatory workers’ compensation coverage during the current legislative session. Texas is the only state where some employers are allowed to opt-out of coverage.
As filed, House Bill 456 calls for day labor employers to be regulated under the authority of the Texas Commission of Licensing and Regulation. Within the actual language of this bill, one key provision states that a day labor employer “is responsible for providing a day laborer with workers’ compensation benefits to the extent required by other law.” Additionally, if this legislation passes, day labor employers would be required to provide a day laborer formal notice by the end of the laborer’s first workday. This notice would have to be in both Spanish and English and would provide notification to the laborer that workers’ compensation benefits are available in case of an injury. If applicable, this notice would also provide the name and telephone number of the employer’s workers’ compensation insurance carrier.
Also, this bill proposes that all day laborers would be required to comply with any safety and health requirements required by employers under other applicable law. Finally, in its current form, this legislation expressly forbids an employer from charging a day laborer for any safety equipment, specific clothing or other mandatory job-related accessories that may be required by law, industry custom, or by any particular employer.

Thanks to www.workcompcentral.com (subscription required) I have a case study of the snarl-ups often experienced today when an illegal immigrants suffers a work injury, about which there is no dispute it happened. Her or his payments can still be cut off. A guest worker program will eliminate all of these trap doors, which I have found the large majority of work injury experts are unaware of.
The matter at hand in this Indiana case is whether the injured worker is entitled to benefits after having reached “maximum medical improvement” and is still disabled – that is, simply is not going to get any better. The worker, Benjamin Marrufo, says through his lawyer that he is still not at “MMI.” The problem for him in reaching MMI is that the court may decide (as it appears to in other jurisdictions) that an illegal worker is not eligible for ongoing permanent benefits.
The article says….
Mindel [his lawyer] disputes that his client is at MMI, and said that under Indiana workers’ compensation law his client cannot request an independent medical examination because of his illegal status. To be eligible for an independent medical evaluation, an injured worker must have received total temporary disability — which an undocumented cannot collect under the law, Mindel said, adding that he doesn’t expect his client’s claim to be a test for the state high court.
Marrufo is a 47-year-old Mexican national who admittedly came to the United States eight years ago. He filed a workers’ compensation claim for a May 2006 back injury and received medical benefits.
He did not receive any temporary disability for loss of wages during his recuperation, his attorney said.
Indiana courts have not decided whether undocumented workers are entitled to workers’ compensation benefits. State courts in California, New York, Florida, Maryland, Minnesota and Alabama [and other states – PFR]have all ruled that illegal aliens are entitled to medical benefits. Most of the courts, however, have said no to wage-replacement benefits or vocational rehabilitation because the worker is in the country illegally.
A South Carolina lawmaker this year will push to exclude undocumented workers from his state’s workers’ comp system.
“My bill is a very simple bill,” Sen. Jake Knotts, R-West Columbia, was quoted as saying last month. “It says that if a person applies for workman’s compensation, they must show that they are a legal citizen.”

A very well documented story was run on 9/15, by Liz Chandler of McClatchy Newspapers. about problems with access to workers comp protections for immigrant workers — in particular illegal workers. This is the best national scope journalistic report to date on this problem, which I have often addressed. she writes:

In one national study, university researchers surveyed 2,660 day laborers, most of them working illegally. One in five said he’d suffered a work injury. Among those who were hurt in the last year, 54 percent said they didn’t receive the medical care they needed, and only 6 percent got workers’ comp benefits. Employers in at least 20 states, arguing that their employees shouldn’t receive injury benefits because they’re illegal immigrants, have fought and lost in courts and review boards. Among those employees were a California laborer who hurt his back lifting sacks of coffee, an Arizona auto mechanic who was hit in the eye by flying debris, a Maryland carpenter who cut his hand on a saw, and a North Carolina construction worker who suffered a brain injury when he fell 30 feet onto a concrete floor.

the article:

Continue reading New article: Illegal immigrants frequently denied compensation

Workers Comp Insider has done a good job on analyzing the situation in Arizona, where workers comp converage of undocumented workers now appears to hang on whether a comma was needed or not in a law enacted in 1925.

I have been talking with the authors of two studies of immigrant workers engaged in the Katrina cleanup. There are an estimated 10,000 immigrant workers of whom half may be undocumented. Both researchers report that very, very few of their work injuries are handled through the workers comp system. Instead, free care is used. This is a very serious problem. I expect to write more on it as more information becomes available. I have already posted on the published study done by Tulane and UC Berkeley researchers.