Author: Brooke Taylor
Immigrants have long been a backbone of the U.S. labor force, and that’s true in Virginia. Immigrants work in a variety of fields from hospitality and farming to domestic work and construction. Many of these jobs involve heavy physical labor, making them more prone to on-the-job injuries. It is simply stating a fact to recognize that some percentage of these immigrant employees are undocumented which refers to lacking the necessary immigration status to live or work in the U.S.. The question addressed here is if they get hurt on the job, are undocumented workers covered by workers’ compensation insurance?
Although most states offer protection for injured undocumented workers, the laws vary by state. Some offer strong protection while Wyoming, for instance, offers no assistance at all. Most states fall somewhere in between.
Undocumented workers face unique barriers when navigating workers’ compensation benefits, including fear of retaliation, language obstacles, and uncertainty about their eligibility. While immigration status may complicate certain remedies, Virginia allows undocumented employees to pursue most of the same workers’ compensation benefits for job-related injuries as individuals with lawful status.
Virginia laws for injured undocumented workers
The good news is undocumented workers are considered employees under Virginia law. The Workers’ Compensation Act provides benefits for “aliens” whether they were lawfully or unlawfully employed.
What workers’ compensation coverage is available to undocumented workers?
Below is a list of the benefits available to undocumented workers in Virginia.
- Medical care: This includes doctor visits, surgeries, medication and mileage.
- Temporary Total Disability: This covers your wage losses if your doctor deems you unable to work at all. Injured workers are granted two-thirds of their average weekly wage. Undocumented workers are entitled to these benefits so long as they are totally disabled from work, but not when on light duty.
- Permanent Partial Disability: Should a worker experience the permanent disability of a body part, or permanent scarring and disfigurement, coverage is available.
- Death benefits: In the unfortunate event that a work injury is fatal, benefits such funeral expenses may be covered for the dependents in the family.
What is not covered in workers’ compensation cases for undocumented workers?
Unfortunately, immigration status does restrict access to the full suite of benefits given to citizens in Virginia. The below benefits are not covered for undocumented workers.
- Temporary Total Disability Benefits: As noted above, undocumented immigrants can get Temporary Total Disability while they are totally disabled from work. However, they are not eligible for such benefits while they are partially disabled, which is often referred to as being on “light duty.” Thus, when an undocumented worker is released to light duty by his treating doctor, these benefits stop.
- Temporary Partial Disability: This benefit is provides wage loss payments when an injured worker returns to work for his employer while subject to light duty work restrictions, i.e. lifting limitations, and earns less than he was earning prior to the injury. Undocumented workers are not eligible for these benefits in Virginia.
- Vocational rehabilitation services: This benefit would cover job placement and training.
Can employers retaliate against undocumented workers for filing a workers’ compensation claim?
Absolutely not. It is illegal for an employer to retaliate against any employee filing or even intending to file a claim. If this occurs, workers are protected under Virginia code to sue in circuit court for reinstatement, back pay, damages and attorney fees if the injured worker is fired solely for exercising their legal rights.
Can undocumented immigrants face immigration enforcement while pursuing a workers’ compensation claim?
In the past, Reinhardt | Harper | Davis has seen it very rarely. However, given the current climate it is a possibility. Our firm will pursue workers’ compensation benefits for undocumented immigrants in a manner that seeks to minimize exposure to criminal and immigration penalties.
My role as a workers’ compensation attorney
It is my job to:
- Ensure equal access by providing interpreters, translated documents, and culturally-sensitive guidance
- Clarify rights so workers understand that immigration status does not automatically disqualify them from benefits
- Protect confidentiality and reassure clients that seeking medical care and wage replacement under workers’ compensation is separate from immigration enforcement
- Advocate ethically for timely medical treatment, lost wage replacement, and safe return-to-work opportunities
By addressing these challenges with care and professionalism, the attorneys at Reinhardt Harper Davis uphold both the integrity of the workers’ compensation system and the principle that workplace safety protections apply to all workers, regardless of immigration status
What do to if you are undocumented, and hurt on the job
- As with any case, you must seek immediate care, whether via emergency services or a traditional doctor’s appointment.
- Report the injury to your employer within 30 days.
- Document everything you can to build substantial evidence for your case. This can include photographs, medical records, and correspondence between you and your employer.
- File a workers’ compensation claim as soon as possible.
- Should you receive threats by your employer, or are denied coverage, be sure to contact a workers’ compensation attorney familiar with the laws of your state.
- Reach out to local worker centers for language help, guidance, and support. In Virginia, this can include Latinos in Virginia Empowerment Center and Legal Aid Justice Center.
If you are an undocumented immigrant injured on the job, the aftermath can feel overwhelming. Contact the experienced workers’ compensation attorneys at Reinhardt | Harper | Davis for a free case evaluation, which we can offer in Spanish as well.