On a Sunday evening, a man walked into the emergency department at my clinic, complaining of leg and back pain. He had been working at a construction site, he explained, when a lift above him gave way and a concrete slab fell on his neck and back. His coworkers held the heavy slab, so he could quickly escape and step off the platform. Miraculously, he was relatively unscathed. Even though he was injured on the job, his medical paperwork didn't contain a form for workers' compensation.
Almost all Massachusetts workers have a right to workers’ compensation benefits, even those who are paid under the table, volunteers and non-U.S. citizens, regardless of their immigration status. Workers’ compensation covers payment of medical bills and lost payment for work-related health problems, among other benefits. By law, employers can’t ask workers to use their regular insurance to pay for work-related injuries. In practice, however, many workers fear that they may be fired or suffer other retribution for reporting an injury.
I examined the man, who only had a small scrape on his knee and some muscle tenderness of his back and left leg. I explained that the visit should be covered by workers’ compensation and asked a registration staff person to complete the paperwork. She told me afterward that the patient’s employer didn’t have workers' comp, although this is required by Massachusetts law.
I have the same uncomfortable conversation with nearly half of the patients I see for work-related injuries, in which a worker weighs their fear of retribution with their need for medical care. According to a national study by researchers at the Center for Disease Control’s National Institute for Occupational Safety and Health, about 40 percent of work-related illnesses or injuries were not paid by workers' compensation. Most medical bills for these injuries were covered by private insurance or by the workers themselves.
Since Immigration and Customs Enforcement arrested Jose Flores, a Massachusetts resident who broke his femur falling from a ladder on a job site, we will likely see even more workers fearful to report workplace injuries and other abuses. Flores was injured while working for Tara Construction in Boston in March. After retaining legal counsel to seek workers’ compensation, Flores was arrested and detained.
Immigration detention is not the best place for a man with such a serious injury to heal. A Human Rights Watch investigation of 18 migrant deaths in ICE custody revealed substandard medical care and violations of applicable detention standards, and eight migrants have already died in ICE custody this fiscal year.
Although Flores was released from immigration detention last month, after he spent a month in jail, his case has deeply troubling implications. It sends a chilling message to immigrant workers, suggesting that if they demand their rights to payment for work-related injuries, they risk deportation. It also sets a poor example for labor standards. Unscrupulous employers may evade their legal responsibilities, while law-abiding business owners can be undercut by those who flout the law. Meanwhile, health insurance companies and taxpayers must foot the bill for workplace injuries, which employers should rightfully pay. This drives up health care costs.
When workers like the patient I cared for in the ER, or like Flores, fear reporting unsafe conditions, workplaces remain unsafe for immigrant and American workers alike. For this very reason, ICE has specific policies to ensure that immigration enforcement does not undermine workplace safety or interfere with labor disputes. Workplace deaths in Massachusetts have already reached record numbers, and wage theft is an epidemic in residential construction, with the state attorney general’s office receiving more than 6000 wage theft complaints in 2016.
When labor, health or safety laws have been broken, we must protect the workers whose rights have been violated, not the violators of the law. In the words of the Massachusetts Immigrant Worker Center Collaborative, “To do so sets a dangerous legal precedent and creates a serious breach of trust with our public institutions.” The threat extends beyond the workplace, as undocumented individuals may not report crimes, domestic violence or medical emergencies for fear of deportation. When any one of us is afraid to report a crime, all of us are less safe.
Health care providers and concerned residents must urge the U.S. Department of Labor and the Office of Immigration Enforcement to guarantee that the enforcement of immigration law does not undermine safety in our workplaces or our communities.
Lara Jirmanus is a family physician practicing in Cambridge and a fellow at the FXB Center for Health and Human Rights at the Harvard T.H. Chan School of Public Health.