Here is the scenario: An employer hires an illegal immigrant who subsequently is injured on the job. The employee is provided with work restrictions by her primary treating physician. The employer has a position within those restrictions but the employee is an illegal immigrant and has no documentation of his or her legal right to work in the United States. However, if the employer is unable to accommodate the restrictions, the employee is considered temporarily totally disabled.

Is the illegal immigrant entitled to temporary disability payments in this scenario?

Two Panel decisions have answered this question. The first is Sarahi Cubedo v. Leemar Enterprises, Inc. (2011) 2011 Cal.Wrk.Comp.P.D. LEXIS 356. The applicant was provided with work restrictions by her primary treating physician that were initially accommodated by her employer. During the applicant’s deposition, the employer discovered that the applicant was an undocumented worker. The employer subsequently refused to provide the applicant with continued modified work. The Panel held that while the applicant would be entitled to receive temporary total disability when appropriate, the defendant was not liable for temporary partial disability payments when the defendant made an offer of modified work which was not able to be accepted by the applicant due to her undocumented worker status.

The second Panel decision to address this issue is Martin Esparza v. Barrett Business Services (2012) 40 CWCR 69. The applicant was deemed totally temporarily disabled for a short time before the employer discovered that he had an invalid social security number. The applicant’s primary treating physician had found him capable of modified duty with specific restrictions. The employer had work available but would not offer the work to the applicant without proof of his legal right to work in the United States. The Judge awarded temporary disability, but defendant petitioned for reconsideration and a Board Panel held that the Judge erred.

This Panel held that the applicant’s inability to accept any sort of employment, i.e., regular, modified, or alternative, due to his immigration status, does not render him temporarily totally disabled for purposes of obtaining temporary disability benefits.

The overlying issue in these cases is represented in Farmer Bros. Coffee v. WCAB (Ruiz) (2005) 133 Cal. App.4th 533, wherein the Court indicated that the legislature sought to avoid conflict with the Federal Immigration Reform and Control Act of 1986 in Labor Code section 1171.5(a), that immigration status is irrelevant to workers’ compensation claims except with regard to the issue of reinstatement, which federal law prohibits.

While these cases do not represent binding authority, they certainly represent a defense to be set forth when faced with a similar scenario, which could result in a significant savings of otherwise due temporary disability indemnity. Therefore, if modified work is available to offer to the applicant but the applicant cannot accept due to his or her undocumented status, the defendant can argue that temporary disability payments are not due.

Also note that if the employer can accommodate the restrictions, an offer of modified or alternative work should be made with the proviso that but for the applicant’s illegal immigrant status, the applicant could return to work.

Notwithstanding the above discussion, an employer is best advised to confirm a potential employee’s right to work in the United States prior to hire to avoid any risk of prosecution for hiring of illegal immigrants in violation of 8 USC section 1324a.