Opting out of workers’ comp can open an employer up to lawsuits

| Jun 8, 2021 | Non-subscriber insurance |

Many states in the U.S. require employers to carry workers’ compensation insurance. Texas, however, does not make this mandatory. If an employer in Texas chooses to opt-out of workers’ compensation they must have an alternative to workers’ compensation insurance. Many of these employers choose to carry nonsubscriber insurance. Nonsubscriber insurance can affect whether an injured worker can pursue a legal claim against the employer and what compensation they may be awarded if they prevail.

Employees may pursue claims against nonsubscriber employers

If an employer carries workers’ compensation, an injured employee generally cannot sue the employer (although they may pursue a third-party claim in some cases). Instead, the injured employee can pursue workers’ compensation benefits to cover the damages they suffered due to the workplace injury.

However, if an employer is a nonsubscriber an injured party can pursue a legal claim against their employer. If the employee can show their employer was negligent then the employer may have to pay a significant amount of damages. These damages may include punitive damages and compensation for pain and suffering.

When is an employer negligent?

An employer is negligent if they had insufficient staff to perform the job safely. Employers are also negligent if they did not maintain a safe workplace and working conditions. In addition, employers are negligent if they did not provide workers with the necessary equipment to do their job safely. Finally, employers are negligent if a supervisor or another employee was negligent.

Nonsubscribers lose the ability to utilize certain defenses

In addition, nonsubscribers also lose the ability to utilize certain defenses that an employer who carries workers’ compensation may use. Nonsubscribers facing a legal claim cannot use the fact that the worker was negligent as a defense, that another employee was negligent as a defense or the fact that the injured worker understood the risks and voluntarily accepted them as a defense.

Learn more about nonsubscriber insurance

If an employer carries nonsubscriber insurance, they are not afforded the same protections provided to those who carry workers’ compensation insurance. This allows workers to directly pursue a claim against their employer if they are injured on the job. This post is for educational purposes only and does not contain legal advice. Workers in Texas interested in learning more about nonsubscriber insurance may find our firm’s webpage on this topic helpful.