Worker’s compensation benefits are due when a worker is injured on the job or suffers a work-related illness. Worker’s compensation benefits can include payment of medical expenses and wage loss benefits while recovering from injuries. But what happens when the injured worker is undocumented? Are undocumented workers entitled to worker’s compensation benefits?
The issue of worker’s compensation for undocumented workers is a complex and contentious topic, and every state has approached the issue differently. The Wisconsin Workers Compensation Act was written so that almost all Wisconsin employers are required to carry worker’s compensation insurance and most employees are covered, regardless of immigration status.
In the United States, an “undocumented worker” is a foreign-born person who is not a permanent resident or citizen of the United States and does not have legal permission to work in the U.S. When an undocumented worker is injured at work, an employer may try to claim the undocumented worker is not eligible for worker’s benefits because they are not legally employed. However, state laws in Wisconsin are written so that undocumented workers who were injured at work are still entitled to worker’s compensation benefits.
The Wisconsin Department of Workforce Development is a state agency that oversees worker’s compensation claims by injured workers in Wisconsin. It is not affiliated with the federal government’s Immigration and Customs Enforcement agency (ICE). Undocumented workers in Wisconsin are entitled to worker’s compensation benefits, regardless of their immigration status.
Some categories of workers are excluded from coverage through Wisconsin’s worker’s compensation system. Domestic workers, some farmers and their family members, independent contractors, volunteers, members of qualified religious sects, and workers covered under federal worker’s compensation requirements are not covered under Wisconsin’s Worker’s Compensation Act and are not eligible for Wisconsin worker’s compensation benefits.
Many Wisconsin farm workers are not entitled to worker’s compensation benefits because of an exemption in Wisconsin law for farms with six or fewer employees unrelated to the owner. These employers are not required to provide worker’s compensation coverage, leaving many Wisconsin farm workers without coverage.
However, farmers who employ six or more workers on any 20 days during a calendar year are required to provide worker’s compensation coverage. They must have worker’s compensation coverage in place within ten days after the worker’s 20th day of employment.
Wisconsin’s worker’s compensation benefits program seeks to provide coverage for all injured workers. The focus is on ensuring injured workers receive the medical care and treatment they need for work-related injuries and illnesses. One of the principles underlying this is that employers should not realize any kind of business-related gain associated with employing undocumented workers. If an undocumented worker is not covered by worker’s compensation, that would result in a gain for the employer. Another principle is that an injured worker is an injured worker, regardless of documentation status, and it is fair to compensate that person for an injury sustained while working.
Some employment-related benefits fall outside of the Wisconsin worker’s compensation system. Undocumented workers may not be eligible for these benefits.
A worker who is so severely injured that they cannot return to their original line of work may qualify for retraining benefits to help them move into a new career. Worker retraining benefits generally fall outside of the workers’ compensation system, and undocumented workers are not eligible for retraining benefits.
If their employer does not have work available, an undocumented worker may consider applying for unemployment benefits, as this situation is similar to being laid off. However, Wisconsin does not offer unemployment benefits for undocumented workers.
After a workplace injury, injured workers often ask if they can sue their employer. While some limited exceptions exist when an injured worker can sue their employer, the general answer is “No - you cannot sue your employer for a work-related injury.” The workers’ compensation system is an “exclusive remedy” — it is the only way to obtain compensation for your work-related injuries.
The same holds true for undocumented workers. Because the goal of Wisconsin’s worker’s compensation benefits program is to provide coverage for all injured workers, undocumented workers who were hurt on the job are still entitled to worker’s compensation benefits, regardless of their immigration status.
If you’re an undocumented worker who was injured at work, you should follow the same procedure as anyone who was hurt on the job.
If you were hurt on the job in Wisconsin, you are entitled to worker’s compensation benefits regardless of your immigration status, unless you work for a farm employing less than 6 employees in a year. Wisconsin worker’s compensation attorney Luke Kingree can evaluate your circumstances, explain your options, and help you obtain the benefits you deserve.
To learn more, read our FAQ section and Information Center on worker’s compensation benefits, then contact Kingree Law today. Kingree Law is committed to your well-being and will seek the compensation you deserve.
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