Can undocumented workers receive workers compensation in Chicago?

Are you an undocumented worker who has been hurt at work? Are you afraid to come forward and get the money you deserve? Don’t be.

Despite the fact that undocumented immigrants reportedly make up 3.5% of the United States’ population, undocumented workers often allow companies to deny them their workers’ compensation in fear of being charged for illegally entering the country. But you have rights.

While some states do deny undocumented workers the right to compensation (such as Wyoming), Illinois law expressly grants workers compensation to all employees. Under the Immigration Reform and Control Act, undocumented workers are not technically allowed to work in the U.S., and companies have tried to use this as a loophole to get out of paying for injuries to their undocumented workers, but the state of Illinois has decided that this is not enough to deny any worker their dues. The Illinois Appellate Court expressly ruled that (i) an undocumented alien is included as an “employee” under the workers’ compensation statute, (ii) the result is not preempted by federal immigration law, and (iii) there is a unique standard for determining whether an undocumented alien may receive benefits under the “odd-lot” doctrine.

Let’s break that down:

  1. Even if you are undocumented (not technically supposed to be employed by an American company), you are not penalized under workers’ compensation law. Illinois law includes “aliens” in “employees,” so that all workers are protected—undocumented or otherwise.
  2. The Illinois court of appeals decided that the Immigration Reform and Control Act (which bans the employment of undocumented workers) was intended to discourage illegal immigration. However, the court ruled that guaranteeing fair treatment for workers after gaining employment did not directly conflict with the ban on employment in the first place. This decision (shared by a lot of states) means businesses can’t try to avoid paying workers compensation on the basis of your immigration status.
  3. The “odd-lot” doctrine states that an employee may be totally and permanently disabled despite being able to return to work on an occasional and irregular basis. In effect, this means a person would be handicapped to the point of being excluded from most work available in the job market, but not so handicapped that they are completely incapacitated. The court determined that illegal immigration status is completely irrelevant in determining whether a worker falls into the odd-lot category, stating that as long as a worker’s unemployability is not linked to their immigration status, they can still fit the odd-lot category.

So what am I entitled to?

Generally, you’re entitled to the same medical benefits any American citizen would receive. Further, in the case of Economy Packing Co. v. Illinois Workers’ Compensation Comm’n, 387 Ill. App. 3d 283 (1st Dist. 2009), it was decided that an undocumented worker could receive Temporary Total Disability (TTD) benefits or Permanent Total Disability (PTD) benefits. In another case, it was decided that the petitioner was entitled to vocational retraining to find employment in another field in a country where the worker was legally allowed to work. So on the whole, employers will look at your case in the same way as if you were a U.S. citizen.

For PTD cases and cases involving wage differential (where the amount you can earn post-injury must be juxtaposed to the amount you earned before injury), special consideration must be taken by courts. Because the amount you could potentially have made in the future without the injury is subject to scrutiny based on your immigration status, generally it is easier to receive compensation for permanent partial disability (PPD). But if you are able to prove the availability of work in your given field for undocumented workers, you can probably receive PTD.

What about death benefits?

Claiming death benefits is always a tragic necessity, but if your close relative passed as a result of a work-related accident, don’t let their undocumented status stop you from filing a claim. Under Illinois law, widows, widowers, children, totally dependent parents, as well as partially dependent parents and children can claim compensation at a 50% deduction. While this may not be perfect, it guarantees that you are able to find some justice in the loss of your family member.

Can I get deported for filing a claim?

The chance you are deported is virtually nonexistent. While your boss might make threats of reporting you to the immigration office, on the whole these are empty threats to discourage you from making a claim. Generally, you’ll find there’s very little follow through on this form of commercial bullying. However, if you have specific concerns regarding how your immigration status relates to you claiming benefits you should definitely contact knowledgeable workers’ compensation attorney Jack Epstein. For years, Jack Epstein has helped undocumented workers get the compensation they deserve, and he can help you too. All you have to do is pick up the phone and call us at (773) 522-7000 for a free consultation.

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This post is also available in: Spanish

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