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Can An Illegal Immigrant Get Workers Compensation?

All workers who are injured on the job, including illegal immigrants, are eligible for workers’ compensation benefits in New York. The workers’ compensation is the same as other workers are entitled to and may include the reimbursement of medical expenses and a cash benefit covering a percentage of lost wages. The decision to allow illegal immigrants to get workers’ compensation was made by the state of New York.

In 2011, the U.S. Supreme Court declined to hear arguments about workers’ compensation concerning an undocumented worker seeking coverage after a workplace accident. The absence of a definite federal mandate gave states the authority to decide the issue of whether workers who entered the United States illegally may benefit from workers’ compensation coverage. New York is one of a number of states that interpreted state workers’ compensation statutes as including illegal immigrants in workers’ compensation benefit eligibility.

In New York, the Workers’ Compensation Board’s stance on whether undocumented workers have the right to compensation for workplace injuries is definitive. Under New York, Section 17 of the Workers’ Compensation Law, “Compensation under this chapter to aliens not residents or about to become nonresidents of the United States or Canada, shall be the same in amount as provided for residents…”

In other words, immigration status is not a factor in awarding benefits for workers injured on the job in New York. The New York courts determined that despite the fact that the Immigration Reform and Control Act of 1986 (IRCA) states that it is illegal for an undocumented individual to work in the United States, state laws governing workers’ compensation do not exclude undocumented workers.

Under the federal IRCA, it is a crime for the employer to knowingly hire anyone who cannot legally work in the U.S. The IRCA requires employers to only hire persons who may legally work in the U.S., such as citizens and nationals of the U.S. and authorized aliens. However, in a July 2006 ruling Balbuena v. IDR Realty, LLC (6 NY3d 338, 363 [2006] ), the Court of Appeals of New York ruled “an injured employee’s status as an undocumented alien does not preclude recovery of lost wages in a personal injury action.” This means that IRCA doesn’t automatically pre-empt the NY Workers’ Compensation Board practice of ignoring immigration status when determining workers’ compensation eligibility.

Employers have protection, as well. In 2014, the New York Court of Appeals maintained in New York Hospital Medical Center or Queens v. Microtech Contracting Corp. (2014 NY Slip Op 00897 [22 NY3d 501]) that New York laws specifically grant undocumented workers who are injured in the workplace the right to collect workers’ compensation benefits. Employers that hire undocumented workers remain covered by the exclusive remedy provisions of New York’s workers compensation law. This means that despite the illegality of an employment relationship between an undocumented worker and an employer, if the employer of workers pays the benefits, then that employer is entitled to be protected under the workers’ compensation scheme, without regard to the citizenship status of the worker.

If the worker dies on the job, Section 17 of the Workers’ Compensation Law clarifies that the workers’ compensation death benefits will also be “the same in amount as provided for residents.” However, if the dependents live in a foreign country, only the surviving spouse and children of the deceased worker will receive compensation. If there is no surviving spouse or children, the compensation will go to “the surviving father or mother whom the employee has supported, either wholly or in part, for the period of one year prior to the date of the accident.”


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