It should be no surprise to anyone that high numbers of undocumented workers are often found in low paying, labor intensive industries. Many of these industries such as construction, agriculture, food service and manufacturing can involve high-risk positions with high rates of industrial injuries. Given the number of undocumented workers in these industries, even the most conscientious of employers may at times be faced with an industrial injury involving an undocumented worker.
The assumption that because of their illegal status, undocumented workers would have no right to workers’ compensation benefits under the Nevada’s Industrial Insurance Act (NIAA) is wrong. NRS 616A.105 specifically defines employee and workman to include “every person in the service of an employer under any appointment or contract of hire or apprenticeship, expressed or implied, oral or written, whether lawfully or unlawfully employed, and include but not exclusively: aliens and minors.” The right of undocumented workers to receive most benefits available under the NIIA has been specifically recognized by the Nevada Supreme Court. Undocumented workers are entitled to basic compensation benefits such as medical treatment, temporary total disability benefits while they are totally disabled and permanent partial disability for permanent impairment. What happens when benefits available under the NIIA conflict with the policy and purpose of the Federal Immigration Reform and Control Act (IRCA)?
One of the benefits provided under the NIIA is the right to vocational rehabilitation. Vocational rehabilitation benefits are designed to return an injured worker to gainful employment within the worker’s physical abilities when the injured worker can no longer work in his pre-injury position. However, the right to vocational rehabilitation benefits in the case of an undocumented worker clearly conflicts with the IRCA which precludes employment of illegal aliens.
The Nevada Supreme Court was presented with exactly this question in Tarango vs. State Industrial Insurance System. In this case, Tarango, an undocumented worker, was injured when he fell from an eight-foot ladder while putting up drywall. SIIS provided medical and disability benefits. However, Tarango was unable to return to his previous employment as a result of permanent limitations caused by his accident. Tarango then requested vocational rehabilitation benefits which the State Industrial Insurance System denied when Tarango was unable to provide an Immigration and Naturalization Form I-9. Tarango contested the denial of benefits through the worker’s compensation appeal process, and the case was eventually presented to the Nevada Supreme Court.
The Nevada Supreme Court ruled that the IRCA preempts the NIIA when the two laws conflict. Because the purpose of vocational rehabilitation benefits conflicts with the IRCA provisions precluding employment of undocumented workers, the court ruled Tarango was not entitled to vocational rehabilitation benefits.
A similar issue that has not been addressed by the Nevada Supreme Court concerns an undocumented worker’s right to temporary total disability benefits. Under NRS 616C.475, an injured worker is not entitled to temporary total disability benefits when the employer can provide light duty employment within the injured worker’s temporary restrictions. The employer cannot provide light duty employment and the injured worker is entitled to temporary total disability benefits. What happens when the employer has light duty employment available but cannot offer it because the injured worker is undocumented? Is the undocumented worker entitled to temporary total disability benefits? The rationale of Tarango and other case law suggests that the undocumented worker would not be entitled to temporary total disability benefits under these circumstances.
The current state of the law in Nevada makes it clear that undocumented workers are entitled to basic worker’s compensation benefits. However, where those rights conflict with federal law such as the IRCA, the full menu of benefits available to injured workers will not be available to undocumented injured workers.