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Employers may be
on the hook for additional permanent
disability benefits even if they cannot
lawfully return an employee to work because
he's an illegal alien. Although the issue was
not touched on at a public hearing on the
proposed Return to Work regulations, the
potential costs in higher premiums has the
employer community very concerned.
Under the
current proposed regulations, an employer who
makes an offer of return to work for the same
or a modified job, the employee gets a 15
percent decrease in permanent disability
benefits, whereas an employer who cannot make
an offer must pay a 15 percent increase in
permanent disability benefits. But according
to industry testimony obtained by Workers'
Comp Executive, employers by law cannot hire
illegal aliens. Thus, if an employer found out
an employee was an illegal alien after a claim
form was filled out, an employer cannot
legally give that employee a return to work
offer.
"As
proposed, the regulations indeed make
employers responsible for that which they
cannot control, specifically making an offer
of employment where one cannot legally be
made... In short, because the offer of
employment cannot legally be made, neither the
employer nor the injured worker can benefit
from these provisions. Any other
conclusion will be held constitutionally and
statutorily infirm and...fundamentally
unfair," the testimony reads.
Industry
experts say that the regulation should be
clarified to say that if an injured worker is
found to be unauthorized to work in this
country, PD benefits should be paid in
accordance with the "unadjusted"
permanent disability amount.
In light of
the fact that 2.2 million illegal aliens live
in California constituting 32 percent of the
national alien population, it's incumbent upon
the Division of Workers' Compensation to
clarify the regulation. Indeed, earlier
appellate decisions regarding the employment
of illegal aliens provide guidance on this
issue. This will not only protect honest
employers from the cost of an increase in PD
benefits, but will remove employers from the
untenable position of having to pay an
increased benefit simply because they cannot
legally offer return to work.
(article
taken from WC Executive)
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