Virginia’s Workers’ Compensation And Undocumented Workers: Are Employers Liable For Paying Benefits?

02/18/2020 by Dustin T. Narcisse, Esq.

Undocumented workers in Virginia are entitled to workers’ compensation benefits but not to the same extent as workers who are legally eligible to work in the United States. This concept is commonly misunderstood by workers, employers and workers’ compensation insurers alike. Before analyzing the legal landscape as it pertains to undocumented workers and their eligibility to receive benefits, it is important to understand the underlying history.

In response to a surge in illegal immigration, the United States Congress passed the Immigration Reform and Control Act (IRCA) in 1986. Employment was, and remains today, a primary motive for immigration.  To deter employment-motivated illegal immigration, Congress imposed penalties on employers who hired undocumented workers as well as those employers who continued to employ workers after they lost the legal authority to work.

In 1999, the Virginia Supreme Court addressed IRCA as it applies to workers’ compensation in Granados v. Windson Development Corp. Granados, an undocumented worker, sought benefits under Virginia’s Workers’ Compensation Act. The Supreme Court noted that under IRCA, a contract for hire between an undocumented worker and an employer was void and unenforceable. Therefore, Granados could not be considered an “employee” as defined by the Workers’ Compensation Act, and undocumented workers like him were completely barred from receiving workers’ compensation benefits.

At first glance, the Court’s ruling in Granados appeared to be a victory for employers and their insurers. However, the decision also meant that the Workers’ Compensation Act was no longer the exclusive remedy for undocumented workers seeking compensation. Hence, the door was now open for undocumented workers to sue their employers in Virginia’s civil courts. This subjected employers to a drastic increase in financial liability and litigation costs.

To prevent this, Virginia’s legislature passed an emergency amendment to the Workers’ Compensation Act a few months later. The amendment redefined “employee” to include “aliens and minors…whether lawfully or unlawfully employed…”. To appease those who supported the Granados ruling, the legislature limited the possible benefits that undocumented workers were eligible to receive – namely, undocumented workers are not eligible to receive wage loss benefits unless they are totally disabled.

As the Workers’ Compensation Act stands today, employers and their insurers are liable for paying the medical costs of their injured undocumented workers, and wage loss benefits for those that are completely disabled. Additionally, the Workers’ Compensation Act remains silent on an employer’s responsibility to pay benefits in the event their undocumented employee is deported. This makes complying with certain sections of the Workers’ Compensation Act more difficult since it may involve working with foreign medical providers and foreign law.

It is important for employers to be mindful of their employees’ immigration status because it can significantly impact their workers’ compensation liabilities. You’ll need guidance from an attorney in the event that you’re involved in a workers’ compensation claim with an undocumented worker. Let Vandeventer Black’s team of experienced workers’ compensation defense attorneys work for you.


About the Author:

Dustin is an associate with Vandeventer Black and concentrates his practice in Workers’ Compensation Defense. He works with insurance carriers and self-insured employers defending workers’ compensation claims filed pursuant to the Virginia Workers’ Compensation Act.

He also represents the interests of employers in proceedings before the Virginia Workers’ Compensation Commission. For more information, please contact Dustin at dnarcisse@vanblacklaw.com.

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