When undocumented workers get hurt on the job, their individual illegal status does not obviate a right to workers’ compensation benefits; it may, however, limit the benefits to which they are entitled.

In Florida, the legislature has clearly indicated that injuries sustained by undocumented persons in the course and scope of employment must be covered. This is especially true when the situation is one of “unclean hands.” According to Florida’s 1st District Court of Appeals, “This holding prevents unauthorized aliens from suffering at the hands of an employer who would knowingly hire the alien and then conveniently use the unauthorized alien status to avoid paying wage loss benefits.”

The right to medical care is the same for any construction employee in that if the claimant moves, a doctor needs to be provided within a reasonable distance of his or her home, even if that means providing care outside of the United States.

In the tragic circumstance of a fatal accident, the dependents of an undocumented worker hold the same right to death benefits as the dependents of a citizen. This wasn’t always the case in Florida, placed a lower cap on death benefits for the dependents of an undocumented decedent in the 1980s. The Florida Supreme Court later deemed this unconstitutional under the equal protection clause.

However, the rights of undocumented workers have limitations. If the employee is placed on a light duty status, the company cannot legally accommodate, as it may not knowingly offer a position to an undocumented worker. The worker may not be eligible for lost wage benefits if it is his or her status, not the injury, that prevents a return to the job.

This principle holds true for employees seeking permanent total disability benefits. The Judge of Compensation Claims may consider the eligibility to work as a factor in determining whether the industrial accident rendered the employee permanently and totally disabled.

Misrepresentation may play a role in the entitlement to benefits if the false information was knowingly and intentionally provided for the purpose of obtaining workers’ compensation benefits. For instance, a carpenter who gives a false Social Security number or work visa to obtain employment, and is then injured, has not necessarily committed misrepresentation. But under the law, if that false Social Security number is then offered to a doctor authorized to treat the carpenter or given to the claims adjuster during a formal statement to commence benefits, then misrepresentation comes into play. Note that providing the false documentation for hire may be a crime itself, depending on the state.

It is common for undocumented construction workers to be paid cash and for there to be no payroll records, which are needed to determine the average weekly wage and to calculate any lost wage benefits to which the employee may be entitled. Florida statutes make it clear only that which is reported to the IRS is counted.

That said, even a construction site employee who is not legally eligible to work can find a way to report his or her earnings; it need not be a formal tax return. In a 2011 case before the 1st District Court of Appeals of Florida, testimony of having reported cash earnings sufficed to establish the average weekly wage.

No matter how stressful a workers’ compensation case may become, undocumented injured workers are still afforded protection. The Florida litigation privilege, which affords immunity for communications during judicial proceedings, prohibits the employer from reporting the undocumented worker to federal immigration agencies.

Reporting or threatening to report an injured worker in an effort to have that individual arrested or deported based upon their illegal status could constitute an attempt to preclude receipt of benefits or retaliate against the worker for filing a claim, both of which are illegal acts. If a general contractor took the improper action of reporting a worker to U.S. Immigration and Customs Enforcement, that company is likely to become the defendant party in a retaliation claim.

By way of comparison, undocumented workers in Illinois are afforded protection within the four corners of the Illinois Workers’ Compensation Act—Section 1(b)2 specifically defines an employee as “every person in the service of another under any contract of hire…including aliens.”

Illinois law places an alien worker on the same footing as fully documented U.S. workers, with some exceptions regarding the factors required to prove entitlement to permanency benefits. As with Florida, those in Illinois are also subject to some restrictions of which the claims administrator and employer must be aware.

In Illinois, if employees sustain injuries that are serious enough to prevent them from returning to their pre-injury employment, they may be entitled to a wage differential award. Wage differential awards require an injured worker to prove they sustained wage loss as a result of the work injury and are allocated by comparing the pre-accident wages to those of available positions in the workforce. If the injured worker who has been given permanent medical restrictions by their doctor proves they are unemployable due to the unavailability of jobs in the job market, they may be awarded odd-lot permanent total disability benefits.

Due to these workers’ compensation laws, the courts encounter problems when determining whether an undocumented claimant could realistically obtain employment elsewhere given their undocumented status.

Furthermore, the payment of death benefits under Illinois law does not depend on the undocumented status of the employee. Unlike Florida, death benefits are limited based on the recipient’s location.