From Business Insurance.
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.
Of course, just as the anti-choicers’ efforts to make contraception difficult to obtain and abortion illegal actually wind up increasing the number of abortions, this would likely be bad for employers in the long run. One of the central tenets of most states’ workers’ compensation programs is the “exclusive remedy” protection, which says that “Except in narrow circumstances, such as where the employer actually intends to cause harm to the worker, no matter how egregious the employer’s conduct the worker’s sole remedy against the employer will be through the workers’ compensation system.” In other words, the workers’ compensation program will pay for your medical care and your lost wages, and in return you are prevented from suing your employer.
If you exclude certain people from the protection that workers’ compensation would give them, you’re also excluding their employers from the protection that workers’ compensation gives:
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.
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.
It would also have the tendency to reward unethical behavior by employers:
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.