Are illegal aliens entitled to workers’ compensation benefits in New York?

Greg Lois
Gregory Lois, Esq.

Every employer and every employee is subject to the jurisdiction of the New York Workers Compensation Law if doing business in New York. There are some exceptions: for example, Federal employees and longshoreman are not covered by the Law. Under New York’s Workers’ Compensation Law, most individuals providing services to a for-profit business will be deemed an employee of that business and therefore must be covered by the employer for workers’ compensation insurance. This applies unless those services are specifically excluded as employment under the WCL.

What about resident aliens, illegal aliens, or undocumented workers?

Resident aliens.

Aliens who are in covered employment in New York can be entitled to workers’ compensation benefits when injured in the course of that employment. Mizugami v. Sharin West Overseas, Inc., 599 N.Y.S.2d 480 (1993) and WCL §§ 16, 17.
Illegal aliens.

An illegal alien does not lose the right the right to benefits because of illegal or undocumented status. Further, awarding of benefits does not alter the immigration status of illegal aliens. The Law tries to be as neutral as possible towards illegal aliens so they do not supply employers with an incentive to hire illegal aliens – and then refuse to provide those workers with benefits when they are injured. Post v. Berger & Golhke, 216 N.Y. 544 (1916); Testa v. Sorrento Restaurant, Inc., 197 N.Y.S.2d 560 (3d Dep’t 1960).

Practical Advice on defending claims by illegal aliens.

Defending claims filed by illegal aliens is complicated by the lack of reliable identification. This hinders full and proper investigation of claims, as most medical records and accident reports (like CIB indexes) include references to date of birth and social security number information.

Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016-2019 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com