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Do Undocumented Workers Qualify for Workers Compensation?

Immigration reform and enforcement of immigration laws have become a political hot topic, especially in light of Arizona’s enactment of several laws aimed at getting more undocumented residents to leave the state. In North Carolina, that debate hasn’t impacted the state’s workers’ compensation laws.

Under §97-2 of the state’s Workers’ Compensation Act, the definition of “employee” states in part,

(E)very person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully or unlawfully employed, but excluding persons whose employment is both casual and not in the course of the trade, business, profession, or occupation of his employer…

The key language is that the law covers “aliens…whether lawfully or unlawfully employed…” Big picture, national immigration issues took a back seat (if they were thought of at all) when the legislature wrote this section and when it was signed into law.

There can be lengthy debates about immigration reform, but in North Carolina, if a worker is hurt on the job and otherwise qualifies for benefits, his or her immigration status is irrelevant. Under federal law, employers are required to at least try to find out the status of a job applicant and not hire the person if he or she can’t legally work in the U.S. But that doesn’t impact workers’ compensation benefits once a person is hired, legally or not.

If undocumented workers couldn’t get workers’ compensation benefits, it would make it cheaper for employers to hire undocumented workers and create an incentive to break federal law, since these workers wouldn’t have to be covered by workers compensation insurance. If an undocumented worker couldn’t work because of an on the job injury, the employer could wash its hands of the worker. Given the person’s immigration status, the worker would probably be reluctant to file a personal injury action to get compensation and payment for medical bills.

No matter what your immigration status, if you have questions about workers’ compensation or are thinking about filing a claim, contact our office.