July 4, 2023Share
How Florida’s New Immigration Law Could Affect Workers’ Compensation Claims (And What You Need to Know Now)
Recently, Governor Ron DeSantis signed Senate Bill 1718. Among its many implications, this Bill allows for criminal penalties and/or fines for employers who fail to adhere to the E-Verify system requirement for confirming the legal status of potential employees. It also imposes criminal (third degree felony) penalties on unauthorized aliens who knowingly provide false identification documents to secure employment. In addition, the Bill requires any hospital that accepts Medicaid to include a question about the patient’s citizenship status on its admission/registration form. Why should this concern me as an employer or insurance carrier?
While viewed as purely an “immigration” bill, there is little question that this law will have a wide-reaching impact, including on workers’ compensation claims.
There are certain industries with disparate hiring of undocumented workers. While some businesses may avoid such hiring practices due to Senate Bill 1718, others may seek ways to work around these newly imposed obligations.
Risks and Concerns for Employers That Continue to Hire Undocumented Workers
This scenario generates numerous logistical concerns. For example, if a business knowingly employs an undocumented worker who later gets injured, the business and the injured worker may attempt to avoid the workers’ compensation system due to the penalties imposed by this Bill. The employer may not report the claim for fear that their hiring practices will be exposed; the employee may never even report the claim, fearing criminal penalties for securing the job with false identification.
Not only would this potentially create a financial strain on the employer who may attempt to incur the cost of medical and lost wage benefits in place of their insurance carrier, it may significantly impair an employee’s opportunity for quality medical care.
Concerns Arising at the Point of Hospitalization
New concerns also arise at the point of hospitalization, creating issues that may be disproportionately faced by those with serious injuries. Senate Bill 1718 requires hospitals to collect patient immigration status data information. This places a new burden on the injured worker/patient to truthfully complete the initial paperwork when seeking treatment at a hospital. If an injured worker provides false/misleading information about their citizenship status when completing hospital forms, an argument could be made that such a false/misleading representation was for the purpose of securing medical benefits as part of a workers’ compensation claim, and thus should be considered fraud. There is also a question as to whether the injured worker’s failure to complete that portion of the hospital forms, while not an overt misstatement, could still be deemed a misleading omission. While immigration status was not previously a basis upon which benefits could be denied, this Bill seems to alter that principle. Faced with this new requirement and its potential ramifications, those with more minimal injuries may avoid treatment at hospitals; for those with serious injuries, the impact remains to be seen. Questions arise as to how the courts will treat the employee who is undocumented and unconscious on arrival at the hospital; and, I have no doubt other justiciable issues will present over time.
In addition to the issues raised in the context of medical treatment, employers also face critical decisions once an undocumented worker’s status becomes known, which could have an impact on indemnity benefit entitlement.
The Prohibition Against Continuing to Employ an Unauthorized Alien
Significantly, the bill “prohibits an employer from continuing to employ an unauthorized alien after obtaining knowledge that the person is or has become an unauthorized alien.” The employer will be required to terminate the injured worker’s employment, once it discovers this issue, even after a workplace accident. In these cases, termination will likely increase the carrier’s indemnity exposure, as benefits continue post-termination unless the termination is for misconduct. Thus far, the courts have not considered securing employment with false identification to be misconduct; however, enactment of this law might create a new issue around the definition of “misconduct.”
As Governor Ron DeSantis signed Senate Bill 1718 into law, it is now referred to as Chapter No. 2023-40 and will take effect on July 1, 2023.
While it remains unclear how the law will ultimately impact workers’ compensation in Florida, there are numerous issues that are reasonably foreseeable, which will need to be addressed by employers, healthcare providers, insurance carriers, and defense attorneys.
We will closely monitor the law and its effects. If you are unsure of whether an injured worker is entitled to benefits under Chapter No. 2023-40, contact us for assistance.