With all of the discussion in today's political sector regardingwalls on our borders, it's common within Florida to encounteremployees not eligible for work in the United States.

When undocumented workers get hurt on the job, their illegalstatus doesn't make them ineligible for workers' compensation benefits, but, it maylimit the benefits to which they are entitled.

Related: How to navigate immigration issues and businessrisks

The Florida Legislature has included protection for undocumentedindividuals as injuries sustained on the job must be covered.

Rights to medical care

The First District Court of Appeal expressed, “This holdingprevents unauthorized aliens from suffering at the hands of anemployer who would knowingly hire the alien and then convenientlyuse the unauthorized alien status to avoid paying wage lossbenefits.” Cenvill Development v. Candelo, 478 So.2d 1168(Fla. 1^st DCA 1985).

Rights to medical care are the same for any employee in thatshould the claimant move, a doctor needs to be provided within areasonable distance of that person's home, even if that meansproviding care outside of the country, see AMS StaffLeasing v. Arreola, 976 So.2d 612 (Fla. 1^st DCA2008).

Limitations

The rights of undocumented workers do have limitations, however.If the employee is placed on a light duty status, the companycannot legally accommodate as it may not knowingly offer a positionto an undocumented employee. This means the worker may not beeligible for lost wage benefits if it is his status, not theinjury, that prevents a return to the job, seeCenvill. 

This is also true for employees seeking permanent totaldisability benefits. The Judge of compensation claims mayconsider the eligibility to work as a factor in determining whetherthe industrial accident rendered the employee permanently andtotally disabled, see HDV Construction Systems v. Aragon,66 So.3d 331 (Fla. 1^st DCA 2011).

False info or documentation

Misrepresentation can have an impact in the entitlement tobenefits if the false information was knowingly provided to obtainworkers' compensation benefits. One who provides a false SocialSecurity number or work visa to obtain employment, who is theninjured, has not necessarily committed fraud under Section 440.105,Florida Statutes. The misrepresentation has to be made to obtainbenefits, with such examples including providing false SocialSecurity numbers to claims adjusters or treating physicians.

Providing false documentation during the hiring process may be acrime itself however, it does not automatically constitutemisrepresentation under workers' compensation,see Arreola v. Administrative Concepts, 17 So.3d792 (Fla. 1^st DCA 2009); State v. Brock, 138So.3d 1060 (Fla. 4^th DCA 2014).

Oftentimes, undocumented workers are paid in cash to avoidpayroll records, which are needed to determine the average weeklywage, (AWW,) and calculate any lost wage benefits to which theemployee is entitled. Section 440.02(28), Florida Statutes definesthat which constitutes “wages;” and the holding of the First DCA inFast Tract Framing, v. Caraballo, made it clear only thatwhich is reported to the IRS is counted.

Under this ruling, even one not legally eligible to work canfind a way to report his or her earnings. These do not need to bereported in a formal tax return, as the employee can simply reportthe wages, which then qualify as wages, even if reported to the IRSafter sustaining the injury. Simple unrefuted testimony of havingconveyed earnings sufficed to have the AWW established based uponcash payments in Garcia-Lopez v. Affordable Plumbing, 66So.3d 1024 (Fla. 1^st DCA 2011).

Death benefits

In the tragic circumstance of a fatal accident, or sustaininginjuries that lead to death within the statutory timeframe,dependents hold the same right to death benefits as a citizen. Thiswas not always the case. In the early 1980s the legislature placeda lower cap on death benefits for the financial dependents of anundocumented decedent.

This was later deemed unconstitutional by the Florida SupremeCourt under the equal protection clause and the access to courtsright under the Constitution of the state of Florida,see  DeAyala v. Florida Farm Bureau CasualtyInsurance, 543 So.2d 204 (Fla. 1989).

Protected from being reported to immigration agencies

No matter how distressed company executives may become as aworkers' compensation case develops and payments are issued,injured workers are protected from being reported to federalimmigration agencies. Although there is no specific statutegranting the protection, the policy is seen applied readily throughcase law.

Reporting or even threatening to report an injured worker in aneffort to have them deported based upon their illegal status isseen as attempting to prevent them from receiving benefits orretaliating against the employee for filing a claim. Bothconstitute illegal acts. If an employer does attempt to file areport to U.S. Immigration and Customs Enforcement, that company islikely to become the defendant party in a retaliation claim, andthey put themselves in a position to only hurt their business.

These protections prove coverage is not influenced by politics;however, recently there have been political figures speaking aboutthe issue of immigration. Sebastian Sanchez, an attorney with theEmploymentRights Project at Bet Tzedek, which provides legal services forlow-income individuals, observed that some employers “feel there isofficial support that these workers don't deserve any protectionand don't deserve any rights.”

It's not about politics

A memorandum of understanding between ICE and the U.S. LaborDepartment disavows the practice “motivated by an improper desireto manipulate a pending labor dispute, retaliate against employeesfor exercising labor rights, or otherwise frustrate the enforcementof labor laws.” The rights are protected as discussed above,regardless of how much one may personally disagree with theprivileges afforded undocumented workers in Florida.

California Labor Commissioner, Julie Su, perhaps said it best:“In order for our democracy to function, the people, the residentsof our state have to feel safe … to report a violation and seek thehelp of government.” Although the comment came from a Californiaofficial, the same applies to Florida. We cannot allow politics andpersonal beliefs to hinder the administration of benefits to whichan injured worker is entitled.

While this issue could be avoided in its entirety by ensuringall new hires have the proper papers, that is not realistic in ourstate. If one chooses to employ an undocumented worker, it's theirduty to protect them as well.

Related: 10 more issues impacting workers' compensation in2018

Amy Siegel Oran is a partner at Kelley Kronenberg,concentrating her practice exclusively on workers' compensationdefense. She can be reached at [email protected].