WAIVER OF WORKERS’ COMPENSATION INSURANCE – TEXAS EMPLOYEES BEWARE

Worker picture.jpgMany people believe that all employers in Texas are required to provide workers’ compensation insurance to their employees when in fact that is not the case. There are many employers in Texas who can’t afford such insurance or simply choose not to provide it for theIr employees, Many employees of such employers believe that if they are injured on the job their medical expenses and lost income will still be taken care of only to discover that they will have to sue their employer if they want to be compensated. This may put them in an awkward position, especially if they want to continue their employment.

The Texas Workers’ Compensation Act is contained in Chapters 401 through 419 of the Texas Labor Code. Under the Texas Workers’ Compensation Act, employers are required to notify their employees as to whether or not the employer has workers’ compensation insurance coverage. The employer must notify each new employee of the existence or absence of workers’ compensation insurance coverage at the time the employee is hired. The employer must also post notices of whether the employer has workers’ compensation insurance coverage at conspicuous locations at the employer’s place of business in order to provide notice to its employees. An employer who obtains workers’ compensation insurance coverage or whose coverage is terminated or canceled must notify each employee that the coverage has been obtained, terminated, or canceled not later than fifteen days after the date on which the coverage, or the termination or cancellation of the coverage, takes effect.

If the employer provides workers’ compensation insurance, the insurance company is liable for compensation for an employee’s injury, without regard to fault or negligence of the employee, if: (1) at the time of injury, the employee has not waived his rights under the Texas Workers’ Compensation Act; and (2) the injury arises out of and in the course and scope of employment. Depending on the type of injury, the insurer must pay the employee the benefits that are described in Chapter 408 of the Texas Labor Code. Many people do not realize that they have the option to waive worker’s compensation benefits and retain rights under the common law to sue their employer for on the job injuries. The Workers’ Compensation Act provides that, unless the employee gives notice to his employer that the employee wants to retain his common law rights against the employer, the employee waives the employee’s right of action at common law or by statute to recover damages for personal injuries or death sustained in the course and scope of the employment and is limited to recovering the benefits provided by the Workers’ Compensation Act. However, if the employee wants to retain a common-law right of action to recover damages for personal injuries or death against his employer, the employee is required to notify the employer, in writing, that the employee waives coverage under the employer’s worker’s compensation insurance policy and wants to retain all rights of action under common law. In order to do so, the employee must notify the employer not later than the fifth day after the date on which the employee: (1) begins the employment; or (2) receives written notice from the employer that the employer has obtained workers’ compensation insurance coverage if the employer is not a covered employer at the time of the employment but later obtains the coverage. The Workers’ Compensation Act specifically prohibits the employer from requiring its employees to retain their common-law rights as a condition of employment.

If the employee has waived coverage or the employer does not provide workers’ compensation insurance for its employees, in a suit brought by the employee against the employer to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that: (1) the employee was guilty of contributory negligence; (2) the employee assumed the risk of injury or death; or (3) the injury or death was caused by the negligence of a fellow employee. But the employee must prove that 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 contributed to the injury. The only defenses that the employer has to the employee’s suit is that the injury was caused: (1) by an act of the employee that was intended to bring about the injury; or (2) while the employee was in a state of intoxication. The employee’s right to bring a cause of action may not be waived by an employee before the employee’s injury or death. Any agreement by an employee to waive a cause of action against the employer before the employee’s injury or death is void and unenforceable. Additionally, a cause of action against the employer may not be waived by an employee after the employee’s injury unless: 1) the employee voluntarily enters into the waiver agreement with knowledge of the waiver’s effect; 2) the waiver is entered into not earlier than the tenth business day after the date of the initial report of injury; 3) the employee, before signing the waiver, has received a medical evaluation from a nonemergency care doctor; and 4) the waiver is in a writing under which the true intent of the parties is specifically stated in the document and the waiver provisions are conspicuous and appear on the face of the agreement.

Suits brought by employees against employers who do not have workers compensation insurance are usually based of the failure of the employer to provide a safe work place. The employer has the obligation to (1) warn the employee of the hazards of employment; (2) provide needed safety equipment and assistance; (3) instruct the employee in the safe use and handling of products and equipment used in the employer’s facilities; (4) adequately hire, train, and supervise its employees and (5) exercise ordinary care to select competent and careful co-employees. However, the employer is not the insurer of the employee’s safety. The employer does not have the duty to warn the employee of hazards that are commonly known or already appreciated by the employee; or (2) provide equipment or assistance that is not necessary for the jobs safe performance. Additionally, the employer is not liable if the injury results from the employee performing the same character of work that employees in that position have always done and there is no evidence that the work is unusually hazardous.

So before you decide to work for an employer who does not provide workers compensation insurance or you decide to waive your right to workers’ compensation insurance coverage, you must first understand that in order to be compensated for your on the job injury you must first establish that the employer’s or a co-employee’s negligence caused your injury. If you can get past that hurdle, you may be entitled to recover damages for medical expenses, lost income, physical impairment, disfigurement and pain and suffering, whereas, if you are covered by workers’ compensation insurance and injured on the job your benefits will be limited to those provided by the Texas Workers Compensation Act. At The Law Office of Stephen O’Rear, P.C. we help people who are injured on the job and are not covered by workers’ compensation insurance.