american-dream

Immigration Status and Return to Work: A Polarizing Issue

immigrant workersInjured workers can face a number of obstacles in their quest to return to work, particularly if the residuals of their injury, or in some cases, multiple injuries, have left them with significant physical restrictions. These obstacles are magnified if the worker is a non-English speaker and even more complicated if they are an undocumented worker.

In Washington State, immigration status is not a factor in workers’ compensation coverage

In Washington State, immigration status is not a factor in workers’ compensation coverage – if you are injured while an employee of a Washington company, your injury claim is covered.  The Department’s position is that it is not its responsibility to monitor immigration laws but, rather, to provide protection to workers in our state.  This is a very progressive stance, one that is rare across the spectrum of state comp systems, but it can complicate the return-to-work phase of an injury claim.

Vocational services for any non-English speaking employee can be time-consuming and expensive, even for a modest retraining goal, as the labor market is particularly limited when one’s ability to read, write and speak in English is limited.  In many cases, these skills may be lacking in the worker’s native language, as well, and it is not simply a need to learn English that needs to be addressed. The longer the vocational process, the longer the injured worker remains on time-loss and the greater the retraining cost; all factors that impact the bottom line of the State and self-insured employers.  Often, employers scramble to find a light duty job for their employee to get them back to work and avoid the retraining issue.

One of the most frustrating circumstances we encounter occurs when a light duty job offer is made to the injured worker by the employer of injury, with a twist. The employer offers a job that meets the physical restrictions for return to work as outlined by the attending physician. Once the light duty job has been approved by the medical provider, a letter is sent to the injured worker, congratulating them on the newly available job, welcoming the worker back to the company’s employ.  The letter notes a start date and time with an additional request: that the injured worker bring proof of their right to work in the State of Washington.  I will note that oftentimes, although required, this paperwork was not requested or merely passed over when the worker was first hired with the employer. In other cases, many of these workers have been employed for years with the same employer, without ever being asked to produce this paperwork. But, now, it is required and, if it is not available, the worker is determined to be physically able to work and offered a return-to-work position but that this effort has failed due to the worker’s “own actions.”   An argument of unfairness falls on deaf ears when the issue is raised to the Department of Labor & Industries.

If the injured worker is not able to bring the necessary paperwork on the day they are to start their new modified job, a common occurrence, the Department of Labor & Industries can offer no protections as the employer has met the required criteria by the Department for a valid job offer.

Although we are grateful when employers are willing to offer modified or light duty work to their injured employees, we have noticed that this request for paperwork is specific to our non-English speaking clients and the intended outcome is obvious.  If the injured worker is not able to bring the necessary paperwork on the day they are to start their new modified job, a common occurrence, the Department of Labor & Industries can offer no protections as the employer has met the required criteria by the Department for a valid job offer. This leaves the injured worker with: a) the residuals of an injury for which regular employment is not feasible; b) no access to a modified job; c) time-loss termination; and, most likely, d) an inability to qualify for unemployment or other benefits for which a valid Social Security number is required. Not a good place.

This is a very polarizing issue, and we are curious what you think about employers who have found a fair way to “cheat” their loyal employees out of returning to work or receiving vocational retraining benefits following their injuries under these circumstances.

  • http://www.flygare.com Roger

    Let’s have a cup of coffee sometime and talk about this issue. Say hi to Jay!

  • Gordon Webb

    Yes, employers look the other way upon hiring and get everything possible out of non-papered employees, and then when its time to pay benefits after years of dedicated service and payment of taxes, the employer offers a job knowing it cuts off any future obligations. How do we stop this abusive loop whole? I’m not sure requiring verification by the employer upon hiring is the answer.