AN ABUNDANCE OF FEDERAL AND STATE LAWS, regulations, and procedures protect the legal rights of U.S. employees who sustain serious injury, illness, or death on the job. These legal rights provide for monetary benefits to assist those employees who encounter loss wages due to an inability to work. Among them are Social Security benefits consisting of Social Security Disability (SSD), Supplemental Security Income (SSI), and Medicare. Other sources of benefits include workers' compensation, state- disability trust funds, and employer-sponsored disability benefits. The following is a discussion of the various sources and eligibility requirements. In addition, this article explains that some sources provide full protection for foreign national workers while others provide limited protection and, in some cases, no protection.

Social Security Overview

Social Security is an investment plan mandated by the federal government for the benefit of employees working in the U.S. The concept is simple: When you earn money, you pay taxes into the Social Security system. You receive a return on your investment when you retire, or if you should become disabled. If you should die, your survivors collect the benefits. Social Security taxes are paid, in equal proportions, by employees and employers. In most cases, social security taxes are deducted directly from an employee's paycheck and labeled "FICA" on the pay stub. Taxes paid into social security are kept in a special trust fund administered by the Social Security Administration (SSA). The money is used for the sole purpose of paying Social Security and Medicare benefits. All credits earned remain on an employee's SSA record indefinitely.

Title II of the Social Security Act dictates that everyone who gains income while working in the U.S. for a private entity must pay social security taxes. This includes foreign employees: permanent residents, those on temporary work visas, and even those foreign employees who are unauthorized to work. Citizens of countries who have signed Totalization agreements with the U.S. may have their coverage assigned to their country of citizenship. (Currently, the U.S. has no such agreement with India).

Social Security Disability


One of the benefits available to employees injured on the job is Social Security Disability (SSD). In order to qualify, an employee must meet SSA's strict definition of "disability." An employee is considered disabled if he or she can no longer perform his or her job duties and cannot adjust to other work because of severe medical conditions. Basically, the employee must be unable to work at any job. In addition, the disability must be expected to last for at least one year or result in death. The disability can be either physical or mental, but no SSD benefits are paid for partial disability. The total amount of disability payments from SSA and other public disability benefits to an employee cannot exceed 80 percent of that employee's average earnings calculated for a period of time shortly before becoming disabled. Benefits are payable indefinitely unless the employee's medical condition improves or the employee is able to return to performing substantial work. SSA conducts routine medical reviews to determine if disability benefits should continue.

Establishing eligibility for SSD involves two steps: First, the employee must prove disability. A statement from a doctor is not necessarily sufficient evidence. SSA has developed its own standards that determine if a medical condition is severe enough to be considered disabling. The second step involves determining if an employee has earned the requisite amount of work credits. Credits are earned by working and paying taxes. The amount of money needed to earn one credit increases every year. In the year 2002, employees earn one credit for each $870 earned. A maximum of four credits can be earned in a given calendar year. To qualify for SSD benefits, a typical employee over age 30 must earn a total of 40 credits. This equates to approximately 10 years of work in the U.S. Thus, a foreign employee who is in permanent residence status would be entitled to SSD benefits if the employee meets the strict eligibility requirements. To the contrary, most temporary foreign employees cannot meet this qualification because most temporary work visas (such as H-1B visas) are issued for a maximum period of less than 10 years. This means that foreign employees on temporary work visas, except those covered by Totalization agreements, must pay into a system of which many of them will never benefit. At least one challenge to this law has been addressed in federal court. The U.S. Court of Appeals, Ninth Circuit considered a case in which foreign nationals who contributed to the Social Security system, might not receive benefits from the system. The case resulted in an unfavorable decision for foreign nationals. The Court stated, "Eligibility for old age, disability, and survivor's insurance benefits is based upon the length of employment in the United States. Generally, one is not fully insured for such benefits unless he has 40 calendar quarters of coverage." (Moorhead v. U.S. 774 F.2d 936, 57 A.F.T.R.2d 86-588, 54 USLW 2240 (C.A.9 (Ariz.), 1985)

Supplemental Security Income


Although administered by the SSA, SSI benefit payments do not come from the social security trust fund. These payments are financed by the general revenue funds of the U.S. Treasury. SSI benefits are available to qualified individuals who are blind, disabled, or at least 65 years of age. Eligibility is determined by an applicant's available financial resources. To qualify, an individual must have limited household income and assets. Savings and assets cannot exceed $2,000 ($3,000) if married. Certain assets such as property and some personal belongings are not considered. The amount of SSI benefits an individual receives depends on the place of residence. Although the base SSI disability payment is the same nationwide (effective January 2002, $545 per month), many states supplement the federal payment.

SSI benefits are primarily available to U.S. citizens, but the law provides for a few exceptions for some foreign individuals including some permanent residents. SSI benefits are not available to foreign nationals on temporary work visas. The qualifying rules for non-citizens are complex.

Medicare


Medicare operates much like a health insurance program for people 65 years of age or disabled. It provides hospital coverage and pays for other medical expenses. An individual who has been receiving SSD benefits for twenty four months will automatically be enrolled in the Medicare program. As mentioned earlier, a small portion of the taxes paid into social security are designated to pay part of Medicare coverage. Medicare should not be confused with Medicaid. Medicaid is a health care program administered by a state welfare or social service agency and does not require an individual to be disabled in order to collect benefits. In some states, individuals who qualify for SSI also meet the disability requirements for Medicaid.

Leaving the U.S. and Receiving Social Security Benefits


Some foreign nationals are entitled to continue receiving social security benefits when they move out of the U.S. SSA procedural rules in this area vary depending on the country and whether the U.S. has established a bilateral Social Security agreement with that country. The U.S. has Social Security agreements with 19 countries. India is not one of those countries. There are approximately 60 other countries of which benefits will continue to be paid indefinitely to the foreign worker who was injured, but not to that worker's survivor should he or she die. India is not one of those countries. Citizens of India who leave the U.S. while collecting benefits will continue to receive disability payments for only six months. However, if citizens of India lived in the U.S. for at least 10 years and earned at least 40 credits under the Social Security system, those individuals would be eligible to continue receiving disability benefits indefinitely.

Workers' Compensation


Workers' Compensation is available to all employees regardless of their immigration status-including foreign nationals on temporary visas. The concept is based on federal laws that hold employers responsible for injures sustained by employees while on the job. It is known as a no-fault system in that an injured employee is entitled to benefits regardless of who was at fault when the injury occurred. The system is designed to reduce the number of negligent lawsuits brought against employers by injured employees. Each state has adopted its own statutes governing workers' compensation; therefore, programs vary depending upon the laws of the state exercising jurisdiction. Most states require employers to obtain insurance to cover potential workers' compensation claims.

When injured, an employee should report the injury to the employer immediately and request a workers' compensation claims form. Benefits can include medical care; temporary disability; permanent disability; vocational rehabilitation including counseling, and retraining if the employee is unable to return to work; and death benefits payable to the employee's survivors. Temporary benefits are available to employees who lose wages because they cannot work for a minimum of three days. These benefits usually replace two-thirds of lost wages up to a maximum of $490 per week. Permanent disability benefits are available for employees who cannot recover completely and will indefinitely suffer limitations in their ability to work. The amount of benefits payable are determined by a rating schedule and assessment of the severity of the injury.

If an employee moves out of the U.S., the employee is still entitled to collect workers' compensation benefits. However, logistical problems can render such an arrangement impractical and, in some cases, impossible. In such cases, an individual who plans to move out of the U. S. might want to consider settling the case and receiving a lump sum payment before leaving the U.S.

Other Benefit Sources


In addition to the disability benefits mentioned above, there are other benefits for which a foreign national might be eligible. Some states have established disability funds and require employees to contribute via payroll tax deductions. However, these programs usually require employees to work a specified period of time in order to become eligible to collect benefits. Also, some employers provide short-term and/or long-term disability policies as part of their standard health and welfare benefits packages. (Recent regulations from the Department of Labor mandate that foreign nationals be offered the same benefit packages as all other employees.) In addition, some employees chose to purchase private disability insurance policies as protection in case of a disabling injury.

It is important to note that disability benefits received from any particular source may be reduced if an employee receives benefits from another source. For example, SSD benefits are reduced if the employee receives workers' compensation or other government disability benefits. Workers' compensation may be reduced if an employee receives payments from an insurance policy or from employer-sponsored benefits.

Conclusion


Disability claims stemming from injuries or illnesses sustained on the job can be complicated, especially when job termination becomes an issue. Although it is illegal for an employer to fire an employee as a means of punishment for sustaining injuries on the job or for requesting disability benefits, employers do have the right to terminate employees who are absent from work for an extended period time. There are several bodies of federal laws that govern this area and provide job protection for disabled workers. It is worth noting that foreign nationals are granted the same protection under these laws as U.S. citizens. Most states have enacted parallel employment laws that address these issues as well. Because these laws can be complex, duplicative, and sometimes contradictory, it is important that an employee who has been terminated while disabled from a work-related injury consult an expert employment attorney. Although U.S. laws and regulations provide several sources of benefits and job protection for employees with work-related disabilities, these benefits and protections are substantially restricted when applied to foreign national employees, particularly temporary workers.

Brenda Boudreaux is managing partner of the California office of Siskind, Susser, Haas & Devine, an international, immigration law firm (www.visalaw.com), as well as attorney of counsel for the immigration firm Jewell & Associations in San Francisco.