Is Workers’ Comp Required in Texas? What Injured Workers Need to Know

Legally reviewed by Alexander Begum, Personal Injury Attorney

Key Takeaways

• Is workers’ comp required in Texas? Not for most private employers. Texas Labor Code §406.002 lets private employers choose whether to carry it; public employers must provide it.
• About one in four Texas private employers has no coverage. The Texas Department of Insurance estimates 25% of private employers were non-subscribers in 2022, employing about 1.4 million workers.
• If your employer has coverage, comp is usually your only remedy against it. Section 408.001 makes benefits the exclusive remedy, with a narrow exception for deaths caused by gross negligence or an intentional act.
• If your employer has no coverage, you can sue it for negligence. Under §406.033, a non-subscriber cannot blame your own carelessness, argue you assumed the risk, or blame a coworker.
• A waiver signed before you were hurt is void. A waiver signed after the injury only counts if it meets strict conditions in §406.033(f), including a 10-business-day wait and a medical evaluation.
• The deadlines are short. Report the injury to your employer within 30 days, file a comp claim within one year, and file a negligence lawsuit within two years.

No, workers’ comp is not required for most private employers in Texas. Texas is the only state that lets private employers opt out of workers’ compensation, and employers that do are called “non-subscribers.” That choice changes what an injured worker can recover.

If you were hurt on the job, the first question is whether your employer carries workers’ comp. The answer decides whether you file a benefits claim or bring a negligence claim against your employer, which can include pain and suffering that comp never pays. For help with a specific injury, see our Texas work injury lawyers.

Is Workers’ Comp Required in Texas?

For most private employers, no. Texas Labor Code §406.002 says that, except for public employers and as otherwise provided by law, an employer “may elect” to obtain workers’ compensation insurance. An employer that buys coverage (or is approved by the state to self-insure) is a “subscriber.” One that does not is a “non-subscriber.”

Two exceptions:

• Public employers. The state, cities, counties, school districts and other governmental employers must provide coverage.
• Public building and construction projects. Under §406.096, a governmental entity that signs a building or construction contract must require the contractor, and each subcontractor, to certify that it covers every employee working on the public project.

Opting out is legal and common. The most recent employer survey by the Texas Department of Insurance, Division of Workers’ Compensation (DWC), Employer Participation in the Texas Workers’ Compensation System, 2022 Estimates, found that 25% of private-sector employers were non-subscribers, about 108,000 businesses. They employed roughly 17% of the state’s private-sector workforce, about 1.4 million people. Small businesses are the most likely to go without coverage.

How Do I Find Out If My Employer Has Workers’ Comp?

Texas law requires your employer to tell you. Under §406.005, every employer must:

• Tell each new employee, at the time of hire, whether it has workers’ comp coverage.
• Post a notice saying whether it has coverage in conspicuous places at the workplace.
• Notify employees within 15 days if it obtains coverage or its coverage is terminated or canceled.

A non-subscriber must also notify DWC in writing that it has elected not to carry coverage (§406.004). Failing to give either notice is an administrative violation.

If you are not sure, check the posted notice and your hiring paperwork, and ask HR in writing. You can also use TDI’s verify employer coverage page, which links to the state’s coverage lookup tools for insured employers, self-insured employers and governmental entities.

Subscriber or Non-Subscriber: What Changes for You

Source: Texas Labor Code chapters 406, 408 and 409; Texas Civil Practice and Remedies Code §16.003.

More detail: workers’ compensation vs. personal injury claims.

If Your Employer Has Workers’ Comp

Workers’ comp pays medical care and part of your lost wages, no matter who caused the accident. In exchange, §408.001(a) makes those benefits the exclusive remedy against a covered employer and its agents and employees. In most cases, that means you cannot sue your employer for the injury.

• Report fast. Notify your employer (or a supervisor) within 30 days of the injury, §409.001. For an occupational disease, the clock starts when you knew or should have known it may be work-related.
• File your claim with DWC within one year. Section 409.003 sets that deadline.
• Income benefits start after the first week. No income benefits are paid for an injury that causes less than a week of disability; if it lasts longer, weekly benefits begin to accrue on the eighth day, and if it lasts two weeks or more they are figured from the first day (§408.082). Medical benefits have no waiting period.
• You cannot be fired for filing. Section 451.001 bars an employer from firing or discriminating against you because you filed a claim in good faith, hired a lawyer, or took part in a comp proceeding. If you are heading back to work, read your rights after returning from workers’ comp.

Two exceptions to the “no lawsuit” rule are worth knowing. First, when a worker dies because of the employer’s gross negligence or intentional act, §408.001(b) allows the surviving spouse and the worker’s children or other descendants to recover exemplary damages. Our wrongful death lawyers handle those claims. Second, the rule protects only the employer and its agents and employees. If a negligent driver or equipment maker caused your injury, you may have a separate claim against them.

If Your Employer Does Not Have Workers’ Comp

Here Texas law shifts sharply toward the worker. When an employee hurt on the job sues a non-subscriber, §406.033(a) takes away three defenses that employers would otherwise rely on. It is not a defense that:

1. The employee was guilty of contributory negligence.
2. The employee assumed the risk of injury or death.
3. The injury or death was caused by the negligence of a fellow employee.

In plain terms, a non-subscriber cannot argue that you should have been more careful, that you knew the job was dangerous, or that a coworker is to blame. The employer can still defend on only two grounds the statute leaves open: that you intended to injure yourself, or that you were intoxicated (§406.033(c)).

You still must prove negligence by the employer or an agent or employee acting within the scope of the job (§406.033(d)). Common examples include unsafe equipment, missing training or safety gear, and understaffed or rushed crews. Because it is a negligence claim, damages can go beyond comp benefits, depending on the facts. For catastrophic harm like a traumatic brain injury or other serious injuries, the difference can be large.

The deadline is the general two-year personal injury statute of limitations, Civil Practice and Remedies Code §16.003. For a death claim, the two years run from the date of death.

Watch Out for Waivers in Non-Subscriber Injury Plans

Many non-subscribers offer their own “occupational benefit plan.” TDI’s 2022 survey found 30% of non-subscribers had one, covering 73% of their employees. These plans are not regulated by DWC, so the rules are whatever the plan says.

Some of those rules can cost you. Among non-subscribers with plans, TDI found that 13% do not cover injuries not reported the same day or shift, and 21% do not cover treatment from a provider the plan has not approved.

Plans may also ask you to sign away your right to sue. Texas law puts strict limits on that:

• Before an injury, a waiver is void. Any agreement to waive your negligence claim before you are hurt is “void and unenforceable,” §406.033(e).
• After an injury, a waiver only counts if all four conditions are met (§406.033(f)): you sign voluntarily and understand its effect; you sign no earlier than the 10th business day after your first injury report; you have already had a medical evaluation from a non-emergency care doctor; and the waiver is in writing and clearly states what you are giving up.
• The waiver language must be conspicuous, in larger type or contrasting colors than the rest of the agreement, §406.033(g).

What to Do After a Work Injury in Texas

1. Get medical care and tell every provider you were hurt at work.
2. Report the injury in writing to your supervisor right away and keep a copy. Some non-subscriber plans demand same-shift reporting.
3. Confirm whether your employer has coverage using the posted notice or TDI’s lookup.
4. Document the scene with photos and the names of coworkers who saw it.
5. Do not sign anything from the employer, its plan or an insurer until you understand it.
6. Talk to a lawyer well before the one-year and two-year deadlines.

We handle work injury claims statewide, including in San Antonio and McAllen.

What If You Work for the Government?

Public employers cannot opt out, so government employees are covered. For cities, counties and other political subdivisions, claims run under Labor Code chapter 504, and §504.002(c) limits any lawsuit against them to what the Texas Tort Claims Act allows. If a government vehicle or worker hurt you on the job, see our Texas Tort Claims Act lawyers.

Frequently Asked Questions

Hurt at Work in Texas? Find Out Which Claim You Have

A comp claim filed after one year, or a lawsuit filed after two, can be barred, and a hurried waiver can give away a negligence case. The Law Giant’s work injury lawyers represent injured workers across Texas, with offices serving Brownsville, McAllen, Harlingen, San Antonio, Houston and Dallas.

The consultation is free, and you pay no attorney’s fee unless we win. Call (956) 982-1800 or contact us online.

Sources and authorities

• Texas Labor Code: §406.002, §406.004, §406.005, §406.033, §406.034, §406.096
• Texas Labor Code: §408.001, §408.082, §409.001, §409.003, §451.001, §504.002
• Texas Civil Practice and Remedies Code: §16.003
• Texas Department of Insurance, Division of Workers’ Compensation, Employer Participation in the Texas Workers’ Compensation System, 2022 Estimates (April 2023)
• Texas Department of Insurance, Verify employer coverage

This article is general information about Texas law, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its facts; talk to a lawyer about yours. Past results do not guarantee a similar outcome.