Exception to the Rule: Worker’s Comp Non-subscriber Cases in Texas

Most workers who are injured on the job presume that their injuries will be subject to the protections (or, depending on whom you ask, the shortcomings) of the Texas Worker’s Compensation Act (the “TWCA”). However, under Texas law employers may opt-out of the workers’ compensation system. See TEX. LAB. CODE § 406.002. When they opt-out, however, they are considered a “non-subscribing employer,” and they forgo certain benefits provided by the TWCA.

First and foremost, such employers forego the so-called “exclusive remedy” provision of the Act, which states that “[r]ecovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage against the employer for a work-related injury sustained by the employee.” TEX. LAB. CODE § 408.001(a).

Thus, the TWCA vests employees of non-subscribing employers with the right to sue their employers for work-related injuries. See TEX. LAB. CODE § 406.033(a). The Act further deprives the non-subscribing employer of the traditional common law defenses of: (1) contributory negligence, (2) assumption of risk, and (3) the fellow-servant rule. See TEX. LAB. CODE § 406.033(a).

Thus, “the Texas workers’ compensation construct contemplates two systems, one in which covered employees may recover relatively quickly and without litigation from subscribing employers and the other in which non-subscribing employers…are subject to suit by injured employees to recover for their on-the-job injuries.” Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 187 (Tex. 2012).

Verification of employer coverage under the TWCA is publicly available online here