Non-Subscribing Employer’s Defense for Work-Related Injuries

In Texas, workers’ compensation insurance is not mandatory, and many employers opt out of the state’s system.

The employers who take advantage of this law in Texas are called “non-subscriber employers” or “non-subscribers.”

Because non-subscribers choose not to participate in the state system, they can be held liable if an employee gets hurt on the job.

Like in any other injury lawsuit, when an injured worker sues a non-subscriber employer, the employer can assert various defenses.

Non-Statutory Defenses

Non-subscribers can be sued and held liable for work-related injuries suffered by their employee.

A non-subscriber defense in Texas against liability might be that the accident was unavoidable or that there was a sudden emergency.

Other common law defenses that a non-subscribing employer might assert are:

• Pre-existing injury. The employer can argue that a pre-existing injury contributed to the employee’s work-related injury.
• Not within the course and scope of employment. The employer can argue that they are not liable because the employee was injured while doing non-work-related activities.
• Commonly known hazard. The employer can argue that the conduct it instructed the employee to engage in was not known to be hazardous, so it was unforeseeable to the employer that an injury was likely to happen.

Keep in mind the main reason for asserting a non-subscriber employer defense is to avoid responsibility for the accident.

Even if the defense is flimsy, a desperate employer will try to use any argument they can to avoid paying compensation for legitimate injuries.

Statutory Defenses for a Non-Subscriber Employer

When defending against a workplace injury lawsuit, most employers will try to place at least some blame on the employee.

However, employee negligence is not a valid defense for a non-subscriber employer.

Under Texas law, an employer cannot defend itself against a claim by asserting that the injured worker was also negligent, that they assumed the risk of potential injury, or that a co-worker injured them.

Any non-subscriber employer negligence makes them liable. 

But, an employer can defend itself by arguing that the injured employee was on drugs or alcohol at the time of the injury or intentionally injured themself.

The employer can present these facts to the jury, which could reduce or eliminate compensation for the employee.

Texas law also allows employers to ask an injured worker to sign a release of liability, but only after the injury has occurred. So long as certain rules are followed, this waiver can let the employer off the hook. 

Non-subscribing employers may also argue that the statute of limitations has expired on the employee’s claim.

In Texas, the statute of limitations for personal injury claims is two years from the date of the injury. The employer may argue a claim is invalid if the employee does not file their claim within this time frame.

We Are Lawyers for Non-Subscriber Employees

If you were injured on the job, an experienced Texas work injury attorney can help you hold your employer accountable.

At Armstrong Lee & Baker LLP, we work tirelessly to help our clients move on from some of the most difficult moments in their lives.

Our firm has recovered millions of dollars in compensation for our clients.

Contact us today to schedule a free consultation so that we can review your case and explain if an employee non-subscriber defense in Texas might apply.