Note: This article is reproduced here with permission from Hawks Quindel, s.c.
Wisconsin workers are generally entitled to worker’s compensation benefits when they are injured at work, including payment of their bills for medical treatment.
Decisions of both the Wisconsin Court of Appeals and the Wisconsin Labor and Industry Review Commission confirm that undocumented workers are entitled to the same benefits as all other injured employees.
Wisconsin Worker’s Comp is Blind to Immigration Status
Wisconsin doesn’t exclude workers from worker’s compensation based on immigration status. The law is written so almost all employers in Wisconsin are required to have worker’s compensation insurance, and all the employees of those employers are covered, including undocumented workers.
Aaron Halstead, Brigham Young University J. Reuben Clark School of Law 1990, is a shareholder at Hawks Quindel in Madison, where he focuses his practice on worker’s compensation and employment litigation.
Very few workers are excluded from the Wisconsin worker’s compensation Act. Workers who aren’t covered include domestic servants, some farmers and their family members, independent contractors, volunteers, members of qualified religious sects, and workers whose employers are covered by federal worker’s compensation requirements.
None of the exceptions to Wisconsin’s worker’s compensation law are based on immigration status.
Worker’s Compensation Benefits Are Every Wisconsin Worker’s Right
There are two main reasons why undocumented Wisconsin workers are entitled to worker’s compensation benefits:
Courts are for everyone. All people in Wisconsin have access to the state courts, including undocumented workers. In fact, this is true in all states and in federal courts too. Everywhere in the United States, undocumented people can bring lawsuits against others, and can be sued in court as well. Worker’s compensation is a little different from the court system because it is a type of insurance that is mandated by the state, not a type of lawsuit you can bring in court. But the logic of “courts are for everyone” still applies because the worker’s compensation system was designed to replace personal injury lawsuits. If we didn’t have worker’s compensation, then workers (all workers, including undocumented workers) would have the right to sue their employers over work accidents. Instead of having workers sue their employers, we have worker’s compensation insurance, and it is for all workers regardless of their immigration status.
Work injuries are unrelated to immigration status. If an employee is injured at work in Wisconsin, they may have medical expenses to pay and they may miss days of work. If that happens, the worker’s compensation insurance helps undocumented workers pay for medical treatment and provides a percentage of their regular income, just like for any other worker. Similarly, if an undocumented worker is permanently disabled, they are entitled to receive worker’s compensation benefits for the permanent disability. If the permanent disability affects the worker’s job prospects in the future, they might have a loss of earning capacity which could also be covered by the worker’s compensation insurance regardless of the employee’s immigration status.
Undocumented Workers Are Not Eligible for Some Wisconsin Benefits
There are some benefits for injured workers outside of the worker’s compensation insurance, which undocumented workers cannot get.
Undocumented workers do not qualify for the state’s retraining programs. Retraining programs are available to some workers who are so seriously injured that they will never be able to return to their line of work. Retraining programs help them get trained for a new career. Retraining programs are outside of the worker’s compensation insurance, and are not available to undocumented workers.
Undocumented workers do not qualify for unemployment insurance. Some injured workers are able to apply for unemployment benefits if their employer doesn’t have work available for them, because it is similar to being laid off. Undocumented workers do not have access to unemployment benefits in Wisconsin.
Other States Have Different Worker’s Compensation Laws
Be aware that worker’s compensation benefits are not available to undocumented workers in all states. Some states exclude undocumented workers from some or all worker’s compensation benefits. Other states do not exclude undocumented workers, like Wisconsin. Every state has different worker’s compensation laws, so it’s important to find out about the law in your state.
For a more detailed analysis, see the Winter 2018 issue of The Verdict.
This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section web pages to learn more about the benefits of section membership.