• The State of Texas allows employers to opt out of the workers’ compensation system

• But the law that makes that allowance also includes provisions that try to encourage employers not to make that choice

• Those provisions prevent a non-subscriber employer from using a variety of defenses if they are sued by an injured worker

• While Texas law prevents non-subscriber employers from using some defenses, it certainly doesn’t ban every possible defense

Among the common defenses non-subscriber employers employ include:

In all instances, an employee much proof by a preponderance of the evidence that the employer was actually negligent

• In all instances, an employee much proof by a preponderance of the evidence that the employer's negligence, if any, was actually a proximate cause of the employee's injuries

• In all instances, an employee must present proof by a preponderance of the evidence that the employee's injury, if any, was actually foreseeable to the employer

• There may be a signed waiver that releases the employer from responsibility

• Intoxication is a frequently available defense to a Texas non-subscriber. Many employees are under the influence of drugs or alcohol at the time of the accident and are therefore legally responsible for their own injuries

• Commonly known hazards are frequently involved   Often, the hazard that led to an employee's injury was well known to the employee and to other employees. The employer 

• According to the Texas Supreme Court, employers don’t have liability for an employee’s injuries if the employee was performing the “usual and customary” task that they “constantly and generally” perform as part of their job. This is known as the routine job defense

• Sole proximate cause is sometimes a viable defense. This argument requires the employer to demonstrate that the employee’s actions, and only the employee’s actions, were the cause of the accident

• Pre-existing injury is a valid defense.  An employer may attempt to demonstrate that an employee was injured before the accident and that, therefore, the accident did cause the employee's injuries, and the employer cannot be held liable

• Intentional or deliberate harm or injury is also a valid defense The employer can argue that an employee on purpose rather than suffering an accident for which the company would be liable

• Horseplay or employees joking around can be a defense for an employer

• Some incidents occur outside of the course and scope of employment

• Sometimes the injured individual is not even considered an employee of the Employer under Texas law, perhaps rather an independent contractor

• Independent Contractor Agreements

• Texas Nonsubscriber’s Notice of No Coverage (DWC Form 005)

• Texas Nonsubscriber Employer’s Safety Practices Documents

• Indemnity Agreements

• Texas Nonsubscriber Employer’s Report of Non-Covered Employee’s Occupational Injury or Disease (DWC Form 007)

• Employment Agreements

• Management Agreements

• Arbitration Agreements

• Construction Agreements

• Release Agreements

• Employee Confidentiality Agreements

• Sales Agent Agreements

• Agreements with Independent Construction Contractors

• Mutual Performance Agreements

• Staffing Services Agreements

• Texas Nonsubscriber Employer’s Alternative Benefit Plan Documents

• Texas Nonsubscriber Employer’s Incident Reports

• Temporary Personnel Services Agreements

• Subrogation Agreements

• Contribution Agreements

• Termination Agreements

• Mutual Releases

• Wage Deduction Agreements

• Separation Agreements

• Temporary Agreements with Independent Contractor

• Consulting Agreements

• Executive Employment Contracts

• Employee Election and Arbitration Agreements

• Insurance Agency Agreements

• ERISA Plans

• Work Injury Benefit Summary Plan Descriptions

• Insurance Agreements

• Notice to Employees of No Workers’ Compensation Coverage in Texas

• Reinsurance Agreements

• Workers’ Injury Insurance Policies

• Reservations of Rights Notices

• General Contractor Agreements

• Third Party Administrator Contracts

• Master Subcontract Agreements

• Staff Leasing Termination Agreements

• Human Relations (HR) Services Agreements

• Employment at Will Agreements

• Subrogation Assignment Agreements

• Safety Consultant Services Agreements

• Waiver of Liability Agreements

• Employment Benefits Agreements

• HIPAA Information Authorizations and Agreements

• Professional Services Contracts

• Employment Practices Liability Insurance (EPLI) Policies

• Employee Policy Handbooks

• Inspection Protocol Agreements

• Texas Occupational Benefits and Employers Liability Policies

• OSHA Agreements

• Payroll Services Contracts

• Staff Leasing Agreements for Transportation Companies

• Exit Interview Forms

• Leave of Absence Request Forms

• Offer Letters

• Performance Appraisal Forms

• Insurance Certificates

• Change Orders

• Safety Reports

• Subcontractor Applications

• Contract Work Orders

• Scope of Work (SOW) Documents

• Professional Employer Organization (PEO) Agreements