CO Workers’ Compensation Benefits for Undocumented Workers

By: Ilene Feldmeier
POLLART MILLER

The Immigration Reform and Control Act is a federal law requiring employers to verify that all employees are legally eligible to work in the U.S. Undocumented workers (aka “illegal immigrants”) are not legally authorized to work in the U.S. But what happens when an undocumented worker is injured at work? How does their immigration status affect their right to workers’ compensation benefits in Colorado?

Colorado Revised Statutes section 8-40-202 specifically provides that the term employee includes aliens with-out differentiating between a legal or illegal alien. The courts have held that both legal aliens and illegal aliens are considered employees. Therefore, while it might be illegal for an employer to hire an undocumented worker, if they sustain a compensable injury, the undocumented worker is entitled to workers’ compensation benefits.

RIGHTS TO SPECIFIC BENEFITS
Employers have unsuccessfully tried to argue that undocumented workers are ineligible for lost wage benefits because the claimant is “legally disabled” (legally unable to work and the wage loss is due to the lack of documentation). Colorado courts have rejected this argument and held that undocumented workers are still entitled to lost wage benefits. This advances the interests of society because it prevents employers from knowingly hiring undocumented workers and then using their illegal status to avoid paying lost wage benefits.

Undocumented workers are also eligible for permanent total disability benefits (benefits to compensate a claimant who is permanently unable to earn any income due to the work injury). Employers have thus far unsuccessfully tried to argue that a claimant’s permanent total disability is due to the fact that the claimant is not legally eligible for employment. In those cases, the courts concluded that the significant causative factor for the disability was the work injury and not the claimant’s undocumented status. Therefore, if the claimant is employable except for the undocumented status, then there is still a valid argument that they are not permanently totally disabled.

To read this story and other complete articles featured in the April 23, 2017 print edition of Law Week Colorado, copies are available for purchase online.