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What Are My Rights if My Employer Does Not Have Workers’ Comp. in Texas?

Texas is unique; employers in Texas can choose NOT to participate in the workers' compensation program. When a company opts out of providing workers' comp. coverage, injured workers do not receive automatic benefits like they would if the company did participate in the workers' comp. program. This raises the question, "If I am injured on the job and my employer doesn't have workers' comp. coverage, what are my rights?"

Answer: If you are injured while working for an employer in Texas that does NOT provide workers' compensation benefits, you have the right to sue your employer for your losses.

Doesn't the Law Require Employers to Participate in the Workers' Compensation Program?

No, your employer is not obligated to provide workers' compensation benefits under Texas law.

The Rule

COVERAGE GENERALLY ELECTIVE.  (a)  Except for public employers and as otherwise provided by law, an employer may elect to obtain workers' compensation insurance coverage.

Texas Labor Code Sec. 406.002. 

Outside of Texas, the law requires all companies to participate in a workers' compensation program. In Texas, however, employers may choose to participate in a workers' compensation program or not.

Here in Texas, if a company does not participate in the workers' compensation program, we call them a non-subscriber. An employee injured while working for a non-subscriber will be able to sue the company for any losses incurred, such as lost wages, pain and suffering, mental anguish, etc.

Where Does the Right to Sue Non-Subscriber Employers Come From?

It's best to think of the right to sue a non-subscriber as a holdover from the olden days. Back then, before legislators created the workers' compensation system, all work injuries resulted in a lawsuit to seek compensation. But lawmakers invented workers' comp in order to shield companies from such lawsuits. In other words, if the employer pays into the workers' comp system, their employees cannot sue them.

But companies that opt out of the system (that is, non-subscribers) can still be sued under a conventional theory of negligence.

The Rule

(d) [In order to obtain compensation] the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent's or servant's employment.

Tex. Labor Code § 406.033 (d)

"Texas employers have a duty to exercise reasonable care to provide their employees with a safe place to work."

Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 198 (Tex. 2015).

To recover damages, an injured worker must establish that his employer's negligence proximately caused his injuries.

Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006).

As you can see from the above statute and Texas Supreme Court cases, the ancient right to sue an employer for negligence is still alive and well in Texas in the modern era. However, it can only be used on employers who opt out of the workers' compensation program.

We understand that if you have been injured at a workplace that it may be a difficult time for you. You don't have to face it alone. Our experienced work accident attorneys can help you understand your rights as a worker, and can direct you on your next steps to recovery. Call today for a free consultation.

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