Undocumented, and Unprotected? In TX, it is About More than Status

10.11.2017


By Phil Yacuboski

This is the next article in WorkersCompensation.com's “Undocumented, and Unprotected?” series, as our writers explore what is it like to be an undocumented worker in the U.S., and what it means regarding workers' compensation.

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Austin, TX (Workerscompesnation.com) – In Texas, some undocumented immigrants do receive workers’ comp benefits, but much depends on who they are working for at the time they are hurt and if that employer provides coverage.

“The laws are not a barrier to an employee getting workers’ comp benefits in Texas,” said Mark Mayfield, a workers’ compensation attorney in Longview, Texas. “Their status is not a question.”

Texas has two types of employers, according to Mayfield: Those who carry workers’ comp policies and those who don’t. Texas is the only state in U.S. that does not require an employer carry workers’ comp insurance.

“In Texas, you’re allowed to be what’s called a nonsubscriber and you don’t have to provide any insurance at all to your employee(s) if you choose; or you can provide limited benefits under what we call an occupational injury benefit plan,” according to Mayfield.

Under state law, employers are required to notify employees of whether or not they provide workers’ comp coverage. Employers who choose not to, often open themselves up to more lawsuits.

Mayfield said illegal immigrants are also covered, but it depends on the type of insurance the company holds.

“If you’re an undocumented worker and you’re working for a company that has a workers’ comp insurance policy, that’s not even an inquiry the adjuster makes as to status,” Mayfield said. “If it is a nonsubscriber employer, then you are entitled to receive certain limited benefits under their plan if they have one, but you also have the right to sue them for their negligence.”

Mayfield said if the case gets to the court, the issue of an employer being a nonsubscriber will likely arise.

“A lot of the Texas cases side in favor of the injured worker and the undocumented person,” Mayfield said.

“The state has taken a formal position through case law that being an illegal immigrant shouldn’t matter when it comes to workers’ comp benefits,” said Alex Tsyinger, a workers’ comp attorney in San Antonio. 

He said he has seen cases where an immigrant does present either a false identity or false Social Security number.

“That makes it more difficult, but it’s not a barrier,” Tysinger said. “What you see is that for the insurance carriers, it’s an obvious red flag for them. What they already want to do is to deny benefits and lower costs. If they can discourage someone from filing a claim because they think they can get in trouble for applying for comp benefits, they will.”

Tysinger said none of his clients have had this happen to them, but it does cause “friction.”

According to Pew Research, the illegal immigrant population in Texas is at about 1.65 million, making it one of the largest undocumented state populations in the nation.

The way state law is set up is good for some and bad for others, according to statewide Hispanic trade group.

“If you’re an employer, it’s probably not a problem because you still provide some type of insurance like general liability, but if they don’t ask for workers’ compensation, you don’t have to provide,” said Javier Arias, Chairman and CEO of the Hispanic Contractors Association of Texas.

The organization represents about 500 firms throughout Texas.

“As a contractor, it’s great because you don’t have to provide it,” Arias said. “It’s one less expense, but at the end, it’s the employee who suffers. We have a lot of cases where a worker gets paralyzed and nobody takes care of him.”

He said that often leads to helping families raise money. He said many undocumented immigrants choose not to sue.

“If the worker gets hurt and there’s no workers’ compensation, he’s on his own,” he said.

Arias said it’s unlikely there will be changes to Texas’ workers’ compensation laws.

“I don’t think that will happen,” he said. “The business industry is very strong with the legislators and I don’t think it’s in their interest to ask for that.”

In 2016, the Texas Department of Insurance estimated 78-percent of private employers in Texas subscribed to workers’ comp insurance, while less than 5-percent are not covered by a state or private plan, according to The Hill. 

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