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.
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