General answer: No.
Specifically, Labor Code 3551(a) states that "aliens" are employees for workers compensation benefits. The term 'alien' refers to a person who is not a US citizen. They may be classified as documented or undocumented, with 'documented' permitted to work in the United States by having a 'green card'.
The Labor Code does not distinguish between the two when it comes to documented vs. not. Both the Labor Code and case law does not require someone to be a citizen to get workers compensation benefits. Gutierrez, dba Armstrong Co. v. WCAB (Flores) (1976) 41 CCC 184 (writ denied). See also Dittman v. Knapp, Allison (1943) 8 CCC 189 (panel decision) (enemy alien was entitled to benefits); Alfaro v. WCAB (Mier) (2001) 66 CCC 1 (writ denied) (Court of Appeal opinion unpublished in official reports) (undocumented worker was awarded benefits)
Further, Labor Code 1171.5(a) states, "All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state." LC 1171.5(b) states, "For purposes of enforcing state labor and employment laws, a person's immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person's immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law."
The Court of Appeal has held that an undocumented worker is entitled to workers' compensation benefits, excluding reinstatement and back pay. The court found LC 3351 is not pre-empted by the Immigration Reform and Control Act of 1986, 8 U.S.C. 1324a, because of LC 1171.5. In addition, a undocumented worker who obtained the employment by using fraudulent documents (Social Security card and green card) is NOT preclude him from receiving workers' compensation benefits. Farmer Brothers Coffee v. WCAB (Ruiz) (2005) 70 CCC 1399
Even if deported, you can still pursue the claim and testify remotely via Skype or other means. Creffitta, Inc., dba Bay Collision Repair v. WCAB (Alvarez) (2015) 80 CCC 579 (writ denied)
However, we must note that if the employer offers return to work benefits and the employee can't return solely due to residency status, the employee will not be entitled to those additional benefits typically given (such as temporary disability or supplemental job displacement benefits).
As a final note, make sure to find a good attorney that knows the rules and how to protect you in a deposition. The attorneys a Injury Compensation Law PC are strong advocates for all injured workers, whether documented/citizens or not. Contact us for a free consultation! Hablamos Espanol!
