Can an Illegal Immigrant File for Workers’ Compensation in Maryland?

Maria had worked at the Travel Through Hotel for many years. She started working in the dining room as a bus person, then found that she liked working in housekeeping. She had worked her way up to supervisor and was making good money.

All was well until one day, she was short a few staff and had to pitch in to get the rooms done on time. She was a little rushed, and in her haste she broke a vase when she was dusting a dresser. The pieces of glass went everywhere, including a large shard that seriously cut her finger.

She wrapped it up and went to the nearest emergency room for stitches. She called her boss, told him what had happened and filed a workers’ compensation report. Her boss was shocked when several days later, it was determined that Maria was not eligible for any benefits, as she was an undocumented worker.

It’s no surprise that undocumented workers make up approximately 10% of the U.S. workforce. With this many workers out there, it stands to reason that workplace injuries are going to occur. What happens when they report that claim to their employer? Are they covered by workers’ compensation insurance?

Undocumented workers aren’t allowed to work in the U.S. The Immigration Reform Control Act (IRCA) is a federal law that requires employers to verify a worker’s eligibility to work legally in the country. Often when an undocumented worker is hurt at work and tries to make a claim, the employer will remind them of IRCA and deny them any insurance benefits.

State vs. Federal Law

Despite IRCA, many states, including Maryland, expressly allow for an undocumented worker to be eligible to receive workers’ compensation benefits. There are two states (Wyoming and Idaho), that strictly prohibit it. Pursuant to Maryland Labor & Employment Code Ann. Section 9-202, “an individual, including a minor, is presumed to be a covered employee while in the service of an employer under an express or implied contract of apprenticeship or hire.” The definition of a “covered” employee makes no mention of the employee’s work status or right to work and, therefore, the employee’s work status is not relevant to the determination.

Many states are still undecided and are resolving the issue on a case by case basis. The federal court has ruled thus far in favor of allowing benefits, despite IRCA. In their opinion, the court stated that to consider an illegal alien’s employment contracts invalid would open these workers up to unscrupulous employers who could take advantage of their status.

The important thing to remember is that if you or someone you know is injured in a workplace accident and is an undocumented worker, speak with an experienced attorney to determine your rights.

Tara Frame

Tara Frame – Senior Attorney


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