March 11, 2021
Can Employers Opt Out of Workers’ Compensation?
The answer to this question is “yes.” Texas is the only state in the country that allows employers to opt out of workers’ compensation. Employers who opt out of carrying workers’ comp may not provide any accident insurance or they may carry private non-subscriber insurance plans. There are thousands of non-subscriber employers in Texas, including some very big corporations, such as Walmart, Home Depot and others. According to the state’s Division of Workers’ Compensation, approximately 28% of private employers in Texas opt out of providing workers’ comp. Public employers cannot opt out and are required to carry workers’ compensation insurance.
Why Do Employers Opt Out of Workers’ Compensation in Texas?
Employers opt out for different reasons, but they often do this to try to save money. Workers’ comp is regulated by the state, so when workers are injured and their claims are approved, certain benefits must be provided in line with state workers’ comp laws. These benefits include payment of doctor bills and other medical costs and partial wage replacement. However, there’s a limit on the amount of financial help workers receive. And when an employer carries workers’ comp, they can’t be sued by injured employees in the absence of gross negligence.
When an employer opts out of workers’ comp, they aren’t governed by these state regulations. They can control what coverage, if any, that an injured employee gets. When they carry non-subscriber plans, they can determine what kind of benefits to provide and for how long. They can make it hard for injured workers to get benefits at all.
Employers that Opt Out Can Be Sued
But employers who opt out of workers’ compensation also open themselves up to the risk of being sued if workers are injured on the job. While employers who carry workers’ comp cannot be sued, those protections are not in place for companies that opt out. So there is potentially no limit on how much in compensation a non-subscriber employer (with or without insurance coverage) would have to pay out in a successful legal claim.
Responsibilities of Employers that Opt Out of Workers’ Comp
Even when employers opt out of workers’ comp coverage, they still have duties to employees.
- Employers are required by law to tell employees that they have opted out of carrying workers’ comp coverage.
- They are supposed to inform new employees upon hiring and also post notices in employee breakrooms or in other convenient places.
- Additionally, they have to file annually with the DWC telling them that they have opted out of workers’ compensation.
- Non-subscriber companies with five or more employees are also required to report all workplace fatalities, occupational illnesses, and injuries in which employees miss more than a single day of work.
Sometimes, though, companies that opt out don’t want their employees to know they don’t carry workers’ comp. This may be because they don’t want to be sued in case of an injury. Some non-subscriber employers may even try to pass their private insurance off as official workers’ compensation coverage, even going so far as referring to it as workers’ comp. And some may try to cover up accidents and injuries.
If you aren’t quite sure if your employer carries official workers’ comp or is a non-subscriber, you can visit the TDI website. The website provides an online search feature, as well as a downloadable list of companies that carry workers’ comp, as well as a list of non-subscribers.
Additionally, attorneys handling non-subscriber employer injury claims are skilled at finding out whether an employer really carries workers’ comp or not. Experienced non-subscriber employer lawyers also advise injured workers and families of workers who die of work-related injuries or illnesses about their options for filing legal claims for compensation.
Compensation You Could Potentially Get for an On-the-Job Injury
If your company has opted out of workers’ comp and its private insurer isn’t fully covering your losses from your injuries, you may consider bringing a legal claim if you were hurt due to negligence. Damages you could ask for include:
- Past and future medical bills
- Past and future medical expenses (e.g. medications, medical devices)
- Lost wages
- Past and future loss of earning capacity
- Past and future mental anguish/emotional distress
- Past and future disfigurement
- Past and future physical pain.
The specific damages you ask for and how much in compensation you could potentially get depend on the extent of your injuries and the circumstances surrounding the accident. These damages also apply to occupational illnesses.
Wrongful Death Damages for Workplace Accidents and Illnesses
If you’ve lost a family member due to workplace negligence and they worked for a non-subscriber employer, you may be able to get compensation through a wrongful death lawsuit. Spouses, children, and parents of people who die on the job can file for wrongful death if the employer has opted out of workers’ comp. You could potentially get compensation for:
- Medical costs
- Funeral and burial expenses
- Lost earnings of the deceased
- Lost inheritance in the future
- Lost love, care, and support.
What to Do If You’re Injured at a Non-Subscriber Company
Following an injury accident, report it to your employer right away. Depending on their process, they may ask you to fill out a written accident report. Describe the accident just as it happened and with as much detail as possible. If you can, get statements or contact information from eyewitnesses and even take photos of the accident scene with your camera phone. Also, if you weren’t taken for emergency treatment, see a doctor right away – for your own well-being and so you have documented evidence of your injuries. The company may require you to see one of their doctors. Be cooperative if that is the case. And if you believe you are being treated unfairly, contact an attorney for help.
Contact an Experienced Houston Non-Subscriber Claims Lawyer for Help
Debilitating work injuries can be financially devastating on top of their physical and mental challenges. At Waldman Legal Group, we have extensive experience helping people hurt on the job get compensation they need after a workplace injury. If you work for a non-subscriber employer who isn’t treating you fairly, we are here to answer your questions and help you understand your legal options. Don’t hesitate to call us following a workplace injury. We provide free, no-obligation consultations to injured employees. Contact our law firm today at (713) 688-4878 to speak with us about your case.