On Tuesday the Ohio House voted 62-30 in favor of legislation that would block undocumented workers injured on the job from collecting workers’ compensation benefits. The bill now moves to the Ohio Senate. A link to the full text of the House Version of the Bill from the Ohio Legislature’s website can be found here.
The law would grant employers immunity from civil lawsuits or workers’ compensation claims arising from workplace injuries or occupational diseases suffered by undocumented immigrants. The immunity would not apply if the employer knew the worker was not legally authorized to be in the United States when he or she was hired. The immunity would also not apply to alleged intentional torts.
As I noted in a prior blog post, the bill was originally introduced in the Ohio House on October 11, 2017 by State Representatives Bill Seitz and Larry Householder. Representative Seitz told Cleveland.com that the bill would discourage employers from knowingly hiring undocumented workers. Presumably, this is because employers would lose their immunity from civil lawsuits arising out of injuries such workers sustained on the job.
Laura A. Bischoff of the Dayton Daily News wrote that “…Ohio House Minority Leader Fred Strahorn, D-Dayton, said in a written statement that businesses that hire undocumented workers should have to take responsibility for workplace injuries, regardless of immigration status.” According to Bischoff’s article, Democrats against the bill said it could encourage the hiring of undocumented workers, as undocumented workers wouldn’t be qualified participate in the workers’ compensation claim process.
As I discussed in another post, a recent nationwide poll of workers’ compensation professionals conducted by workerscompensation.com revealed that a majority (64.6%) felt that some benefits should be provided in spite of a person’s immigration status. In light of the new legislation, it might be helpful to look at how other states have dealt with the issue of undocumented workers and workers’ compensation benefits.
Courts in Connecticut, Georgia, Illinois, Nebraska, Louisiana, Oklahoma, North Carolina, and New Jersey have ruled that an employee cannot be denied workers’ compensation solely because he or she was not in the country legally. The states differ widely as to whether undocumented workers are entitled to medical benefits only, or are entitled to both indemnity and medical benefits. If permitted, the amount of indemnity compensation available also varies amongst the states, some only providing partial indemnity payments to undocumented workers.
Wyoming and Idaho statutorily exclude undocumented workers from workers’ compensation coverage.
According to a May 23, 2017 article from the National Employment Law Project, legislation to bar workers’ compensation benefits to undocumented immigrants has been recently introduced in several states, including Colorado, Georgia, Maryland, Montana, New Jersey, South Carolina, and Virginia. That legislation was never enacted.
As noted above, one issue often raised in this debate is whether such a coverage ban would encourage employers to hire undocumented workers, and disincentive those that do from providing a safe workplace. This could potentially raise the injury rate amongst all employees, not just undocumented workers. Looking at Wyoming and Idaho, which bar undocumented workers from coverage, according to the Bureau of Labor Statistics, in 2015 Wyoming had the second highest fatal injury rate in the country. The rate in Idaho for the same year, however, was roughly one-third of Wyoming’s, which raises the question as to whether the injury rate in Wyoming is better accounted for by the type of industry in the state, as opposed to its’ workers compensation laws.
Employers Workers' Compensation Law Blog 