Can an Undocumented Worker Get Workers’ Comp in Virginia?

Nothing in this article should be taken as legal advice. Every case is different.

Yes. In Virginia, a worker without work papers is covered by workers’ comp. The law says an “employee” is, with a few listed exceptions, every person, “including aliens and minors,” working for another under a contract of hire, “whether lawfully or unlawfully employed” (Va. Code § 65.2-101). So you can get medical care for the injury. You can get wage checks while your doctor says you cannot work at all. But there is one big limit. If you are not eligible for lawful employment, the law does not require wage checks while you are on light duty (Va. Code § 65.2-502).

This page uses short words and short sentences. A family member can read it with you.

Immigration questions are outside this article. We give no immigration advice here.

Does Workers’ Comp Cover Me If I Don’t Have Papers?

Yes. The words “whether lawfully or unlawfully employed” are in the law on purpose. Virginia changed the law in 2000. In 1999, the Supreme Court of Virginia ruled that a worker without work authorization was not an “employee” under the comp law (257 Va. 103 (1999)). The General Assembly then added the words “including aliens” and “whether lawfully or unlawfully employed.” The new words took effect April 19, 2000, the day the bill was approved (2000 Acts ch. 1018). The change did not reach back to older injuries. In 2001, the Court of Appeals of Virginia denied benefits to a worker hurt in 1998, before the change (35 Va. App. 40 (2001)).

The contract of hire can be “written or implied” (same law). You do not need a written contract. Paid in cash, paid by a crew leader, or hired with no paperwork: the question is still whether you were working for someone under a contract of hire.

What Benefits Can I Get?

The limit in § 65.2-502 is written about partial wage checks. It does not mention medical care. It does not mention permanent loss-of-use payments, and § 65.2-503 has no such limit. Expect the insurance company to argue about it.

What Happens When My Doctor Puts Me on Light Duty?

This is where the limit hits. Here is the exact rule. The employer is not required to pay partial wage checks “to any injured employee not eligible for lawful employment.” And that worker, while partly disabled, cannot get total disability checks either (§ 65.2-502).

So the line between “no work at all” and “light duty” matters more for you than for almost anyone else.

• Doctor says no work at all. Total disability checks are payable.
• Doctor says light duty. Your wage checks can stop, even if no light-duty job is offered to you.
• Doctor’s notes change over time. Each new work note can change what you are owed.

That makes the doctor’s work note the most important paper in your case. Read every one. If the note says light duty but you truly cannot work, tell the doctor exactly what you cannot do. Ask the doctor to write it down. Our page on choosing and working with your workers’ comp doctor explains how the doctor is picked. Our guide to light duty in Virginia explains how light duty works for other workers.

Who Decides If I Am “Not Eligible for Lawful Employment”?

The Virginia Workers’ Compensation Commission decides disputes over benefits, including this one. In the 2001 case above, the employer raised it as a defense. It argued the worker was not authorized to work. The evidence included the papers the worker gave when hired and records from the federal immigration agency (35 Va. App. 40).

What this means for you:

• Tell the truth in your comp case.
• Expect questions about the papers you gave when you were hired.
• Get advice from an immigration lawyer about immigration questions. That is a different area of law, and this article does not cover it.

Do I Have the Same Deadlines?

Yes. The deadlines are the same for every worker.

1. Tell your employer in writing. Do it right away. If you wait more than 30 days, you can lose benefits unless the Commission accepts your reason for the delay and finds your employer was not harmed by it (Va. Code § 65.2-600).
2. Get medical care. Tell the doctor you were hurt at work and how it happened.
3. File a claim with the Commission within two years of the accident. If you miss it, the right to comp is “forever barred” (Va. Code § 65.2-601). Here is how to file a workers’ comp claim.
4. Keep every paper. Pay stubs, cash records, work notes, and the names of anyone who saw the accident.

What If I Was Hired Through a Staffing Agency or a Crew Leader?

You are still covered if you were working under a contract of hire. The hard part is figuring out which company is your employer for comp. That question comes up a lot at the large poultry plants on the Shore. Read hurt at a poultry plant while working for a staffing agency or sanitation crew.

Questions Families Ask

Can My Employer Fire Me for Filing a Claim?

Virginia law says an employer cannot fire a worker solely because the worker filed or plans to file a comp claim (Va. Code § 65.2-308). That law protects an “employee,” and the comp law’s definition of employee includes workers without papers. A firing claim is handled in circuit court, not by the Commission. Read more about employer retaliation and your workers’ comp rights.

Can a Family Member Call for Me?

Yes. A family member can call us and help explain what happened.

Hurt at Work Without Papers? Call Pathfinder Injury Law

Pathfinder Injury Law is the only workers’ comp firm with an office on the Eastern Shore, in Chincoteague. Learn more about our Eastern Shore workers’ comp practice.

Pathfinder Injury Law handles only Virginia workers’ compensation claims. Call 804-505-0633 or use our online contact form.