Although agriculture is one of the nation's most hazardousindustries, about half of all states allow agricultural employersto provide little or no workers' compensation coverage for migrantand seasonal farmworkers.

Many states do not require agricultural employers to provideworkers' compensation coverage for migrant and seasonalfarmworkers. The states are almost evenly split between those thatprovide all or most migrant and seasonal farmworkers with workers'compensation coverage and those that require little or no coveragefor this workforce.

Specifically, only 13 states, the District of Columbia, PuertoRico and the Virgin Islands require employers to cover seasonalagricultural workers to the same extent as all other workers. Thesejurisdictions are: Arizona, California, Colorado, Connecticut, theDistrict of Columbia, Hawaii, Idaho, Massachusetts, Minnesota,Montana, New Hampshire, New Jersey, Ohio, Oregon, Puerto Rico andthe Virgin Islands. In an additional 13 states (including Floridaand New York), only small farmers are exempt from providingcoverage to their migrant and seasonal farmworkers. Moreover,employers who hire legal temporary foreign workers under the H-2Avisa program are required to provide workers' compensationinsurance or equivalent benefits to their employees.

By contrast, 16 states do not require employers to provide anyworkers' compensation insurance for migrant or seasonalfarmworkers. These states are: Alabama, Arkansas, Delaware,Georgia, Indiana, Kansas, Kentucky, Mississippi, Missouri,Nebraska, Nevada, New Mexico, North Dakota, South Carolina,Tennessee and Texas. In an additional eight states, coverage islimited to full-time workers (e.g., Maine), workers in specialtyjobs (e.g., South Dakota), or those employed on large farms (e.g.,Rhode Island).

There are many obstacles preventing farmworkers from securingneeded workers compensation benefits. They include: lack ofcoverage; a small but growing trend for states to reduce or denybenefits to undocumented workers; workers' reluctance to fileclaims for fear of employer retaliation; and the difficulty offinding a doctor who will keep farmworkers off work long enough toallow them to fully recover. Without workers' compensationbenefits, however, injured farmworkers often forgo needed treatmentor go into debt to obtain it.

Another worrisome trend is that states are beginning to followthe U.S. Supreme Court's decision in Hoffman Plastics v. NLRB, 535U.S. 137, 122 S. Ct. 1275, 152 L. Ed. 2d 271 (2002), and limit oreliminate benefits for undocumented workers. For example, inMichigan and Pennsylvania, courts have ruled that injured,undocumented employees could receive medical benefits but notreplacement wages. In Maine, the legislature has gone even further,prohibiting undocumented workers from receiving any workers'compensation benefits.

Due to the vulnerability of this workforce, employer threats ofretaliation keep many farmworkers from filing workers' compensationclaims, even when they are eligible for benefits. While thispractice is illegal, few cases are successfully prosecuted. This isdue, in part, to the fact that undocumented workers are noteligible for federally funded legal services and that many workerswould rather forego their claim than risk losing their jobs.

Finally, farmworkers face obstacles in finding a doctor who willhandle their workers' compensation cases. Many migrant clinics arereluctant to handle such cases and other clinicians may not havethe language skills or cultural competency to effectively treatmigrant patients. In addition, clinicians may not be well informedabout the workers' compensation rules in their state. One commonproblem is that farmworkers are released to return to work to dolight duty, even though no such tasks exist at their workplace. Asa consequence, these workers face the Hobson's choice of returningto work where they risk re-injuring themselves or refusing toreturn and suffering the loss of benefits.

Farmworker Justice isworking with other groups to improve workers' access to workers'compensation benefits. It is working with the Migrant Clinicians Networkto educate clinicians about the workers' compensation system sothat more clinics are able to handle such cases.