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Texas Non-Subscriber Defenses: Injury Caused by Intoxicated Employee

When your employer doesn't provide workers' compensation coverage, that makes them a "non-subscriber." Non-subscribers are somewhat penalized by Texas work injury law. When lawmakers created the workers' compensation system, they provided for employers to opt in or opt out of coverage. With opting in, employers are paying for "no fault" employee work injury coverage. By providing workers' compensation insurance, employers receive a couple of advantages from the workers' comp state-run system in the process, such as immunity from negligence lawsuits.

When opting out, non-subscriber employers save on the cost of covering their employees, but at the same time, they are restricted in the number of defenses they are afforded in work injury negligence lawsuits. This system of opting in or out basically gives the choice to the employer, but attempts to discourage them from opting out.

One particular statutory defense that employers are allowed to use is that an was employee intoxicated at the time of the accident, or the Employee Intoxication Defense. Putting things as simply as possible, the employer is allowed to argue that an employee's injuries were caused by intoxication at the time of the accident. While the argument of the Employee intoxication defense is pretty straight-forward, the consequences on a case are both muddled and profound.

In this article, Dallas work injury attorney Michael Grossman discusses the Employee Intoxication Defense and how it works in Texas non-subscriber work injury cases.


Questions answered on this page:

  • How does the Employee Intoxication Defense work?
  • How is the Employee Intoxication Defense used by employers in a work injury case?
  • Why do employers test an employee for drugs and alcohol after an accident?
  • How can a lawyer help me in a work injury case if my company is a non-subscriber to workers' comp coverage?

Overview of Possible Employer Defenses in Work Injury Lawsuits

The following are some common defenses that employers can use in a Texas non-subscriber work injury lawsuit. These defenses are:

Intoxication as a Statutory Defense

Under the Texas Labor Code, employee intoxication can be used as a statutory defense. Section 406.033 reads:

  • (c) The employer may defend the action on the ground that the injury was caused:
    • (2) while the employee was in a state of intoxication.

According to the statute, the Employee Intoxication Defense allows the employer to argue that they're not liable in a case, because the worker was intoxicated, which caused his or her own injuries. Intoxication can mean under the influence of drugs, alcohol, or some other illegal substance. The examples below help illustrate when the Employee Intoxication Defense would and would not be relevant in a work injury case:

  • Example 1 - Wayne runs a business where Garth is an employee. Garth went out with a co-worker at lunch and had a beer with his meal. When he came back to the job site, he was ready to get back to work. He wasn't showing any signs of intoxication, but incidentally, was injured by a co-worker Cassandra, who was operating a forklift incorrectly. Wayne may attempt to use the employee intoxication defense to get himself off the hook, but it will not fly in a Texas court. Garth's intoxication did not lead to his injuries, but instead, Cassandra's actions led to the accident. As Wayne is Cassandra's employer, he is liable for her actions, and therefore, he's liable for Garth's injuries.
  • Example 2 - Garth went out for a few drinks at lunch, but he came back to work completely intoxicated. If Garth were to cause his own injuries because he was intoxicated (for example, if he were to trip and fall because he was tipsy) and attempts to take Wayne to court because of that work injury, then Wayne could honestly argue this defense. Wayne could clearly state that Garth's intoxication caused his own harm.

The main goal for non-subscribers who use these statutory defenses is to avert responsibility for the accident. Therefore, even if Wayne had only overheard that Garth had a beer at lunch from one of his co-workers, Wayne may still try to use this defense. The fact of the matter is, if the non-subscribing employer is deemed even a little at fault, they're responsible for all the compensation that comes out of the lawsuit. Again, that's a penalty they accept by opting out of the state-run workers' comp system, and so employers will use any attempt they can to avoid paying up the fair due.

Obstacles to Recovery Raised by the Employee Intoxication Defense

A number of issues arise whenever this defense is used. A clear reading of the statute leads one to believe that the accident had to result from intoxication. This defense is one reason why post-accident drug tests are so common. Therein lies one of the issues. Common intoxicants can show up in drug tests long after they are consumed. Even alcohol can show up in a test between 3 and 4 days after a test. This means that if someone went out and tied one on the Saturday before a work accident, if they are injured at work at any point Monday or Tuesday, the alcohol will likely show up on a drug test.

The worker may not have consumed any alcohol after Saturday, but the presence of alcohol in their system allows the employer the opportunity to claim that the accident resulted from intoxication. This complicates matters greatly, because juries are not in the habit of awarding money to people who were injured because they were intoxicated on the job. Even if there are numerous witnesses that testified that the injured worker was completely sober at the time of the accident, the damage of a positive drug test is a serious obstacle for a case.

This issue is even more acute for people who use illicit drugs such as marijuana, which can show up on a drug test for up to 30 days, cocaine, which can show up between 2-4 days, or opiates, which show up between 1-4 days after use. While the problems with alcohol can be overcome with eyewitnesses and expert testimony, the stigma attached to illegal drug use compounds the issues associated with the Employee Intoxication Defense. Juries can be reluctant to award money to people, no matter how deserving, if they feel a portion of that money would be used to purchase illegal drugs.

None of these are a reason to avoid a post-accident drug test. Avoiding the test allows the jury to infer what they like about what would the results have been. The notion that innocent people don't refuse drug tests permeates a jury's thinking. Refusing a post-accident drug test in the eyes of many juries is the same as admitting guilt. It is always better to take the test and attempt to place the results in a proper context than to refuse a drug test.

Another problem with the Employee Intoxication Defense is that it exists in a strange area of the law. The Texas Workers' Compensation does not allow employers to argue contributory negligence. If an employer is even 1% responsible for an employee's accident, they bear 100% of the financial burden. However, the same law grants employers the Employee Intoxication Defense. A clear reading of the law offers no clues as to whether it's an exception to a contributory negligence defense, or if it is a complete bar from damage recovery.

From a practical perspective, if this defense is proven, it generally prevents the recovery of any damages and functions in the real world as a de facto bar to recovery.

How Experienced Accident Attorneys Fight the Employee Intoxication Defense

While the Employee Intoxication Defense does present a real threat to some work injury cases, it is not something that should be feared. An experienced work injury attorney, like those at Grossman Law Offices knows how to deal with the defense. As mentioned before, eyewitnesses such as co-workers and other people who may have seen the injured worker on the day of the accident are crucial to establishing that the worker was not intoxicated at the time of the accident.

Curiously, sometimes the best eyewitnesses are employers themselves. This is because at most jobs, it is unlikely that an employee had not met with a supervisor at some point during the day. If the employee was intoxicated enough to cause an accident, it stands to reason that a supervisor would have noticed the intoxication. Most employers will send intoxicated employees home, for safety and professional reasons. This line of inquiry puts the supervisor in an awkward position. In order for the employee to be intoxicated at the time of the injury, the supervisor was not supervising, chose to let the employee continue working while intoxicated, or the employee didn't seem intoxicated to their supervisor. Any one of these claims tends to damage the employers credibility in the eyes of a jury.

Experienced attorneys will also call expert medical witnesses to explain to the jury what test results actually mean. While most juries are suspicious of injured workers who claim that they tested positively for alcohol or drugs, but they consumed the intoxicants days before the accident. That story is greatly bolstered when someone who knows what drug tests measure can back up such a claim by showing that it is scientifically the most likely explanation for the results the test showed.

When the witnesses and the experts are in agreement, it is still possible that the jury might still believe the Employee Intoxication Defense, but it is far less likely to be a factor in the work injury case.

An Experienced Work Injury Attorney Can Help You Against the Intoxication Defense

Employers are certainly within their rights to use statutory defenses against injured employees who bring their work injury lawsuits. The amount of money involved in many work injury cases means employers will do what they can to avoid liability. If they're holding on to their purse-strings so tight that they don't want to pay insurance premiums to cover employee's work injuries, you can imagine they'll hold on even tighter in your lawsuit.

Over the last 25 years, our attorneys have helped hundreds of injured Texans recovery compensation when they were injured by employer negligence. Our experienced work injury attorneys at Grossman Law Offices, based in Dallas, TX, are here to help answer any questions you may have about your work injury. Call us at (855) 326-0000 for a free consultation.


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