The plight of undocumented workers who are injured on the job brings to mind a quote from the late Groucho Marx. When told a swimming pool was off limits to Jews, Groucho replied: "My son is half Jewish. Can he wade up to his knees?" Our colleague Peter Rousmaniere summarizes the status of undocumented workers in the workers comp systems across the country. They're lucky if the water covers their ankles.
Most injured undocumented workers never try to access the comp system. They are the phantom workers who self-treat their (relatively) minor injuries. It's when they are seriously hurt that they try to secure comp benefits. In many states, the medical treatment of undocumented workers is covered by comp, but indemnity payments are routinely denied. And if the workers reach the stage of maximum medical improvement (MMI), they rarely are entitled to permanancy benefits or vocational rehabilitation. The Catch 22, of course, is that tecnically they are not available for work, because they are illegal, so the concept of wage replacement disappears into the mist.
Rousmaniere cites a case in Indiana, where an undocumented Mexican worker has been unable to collect indemnity for his injury. The carrier apparently has cut off his medical benefits as well, claiming he has reached MMI. Logic tells us that an independent medical exam is warranted, but to be eligible for an IME in Indiana, an injured worker must have received total temporary disability. With state law excluding undocumented workers from indemnity benefits, there is no way to challenge the MMI determination.
The blog goes on to quote Jake Knotts, (presumably no relation to Don), a South Carolina lawmaker who is pushing to exclude undocumented workers altogether from his state's workers' comp system."My bill is a very simple bill," he asserts. "It says that if a person applies for workman's compensation, they must show that they are a legal citizen." Simple it is, fair it isn't.
Truth and Consequences
We may be heading for a fork in the road. One fork will create some form of documentation and recognition for most or all current illegals, thus opening the door to full coverage under each state's comp law. With President Bush perhaps leaning in this direction (in opposition to much of his party), and with the Democratics in control of Congress, this might actually happen. As we have pointed out before, this is probably the most realistic path, and the most inflationary: the cost of business will go up dramatically as millions of "under the table" workers become eligible for all benefits, including but not limited to comp.
At the other fork, Senator Knott and like-minded state representatives are moving to explicitly exclude illegal workers from comp benefits. That might provide some clarity to the situation, but certainly would not improve it. It's hardly fair to blame workers for getting hurt, regardless of how they entered the workforce. We need to hold employers of these undocumented workers accountable, not reward them for their ethically-marginal choice of hiring illegal workers. On the other hand, you could argue that if applicants provide false documentation of their status, and if the employer hires them in good faith, then perhaps the illegal workers are guilty of "willful misrepresentation" and as such are not entitled to full benefits.
For the moment the status quo, as ambiguous and unsatisfactory as it is, still trumps the options. The status quo works because it offers a virtually unlimited supply of cheap labor, keeping the cost of business down. Once injured, undocumented workers will continue to receive second class benefits under the comp system. They will stay in the shallow end of the pool, if, indeed, they can get into the water at all.