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.

-30-