Post-Injury Waivers are Major Source of Protection for Non-Subscribers
The use of post-injury waivers can often be utilized to minimize the risk employers face by electing to become non-subscribers.
Non-subscribers may be sued by their employees for on-the-job injuries and non-subscribers are also limited in the defenses they are allowed to assert. To minimize this exposure, most employers who have opted out of the Texas workers’ compensation system require an injured employee to sign a waiver (in which they agree not to file a lawsuit) in order to receive medical and other benefits following an on-the-job injury. The validity of these waivers has become a hotly contested topic in Texas courts. It used to be that non-subscribers had a great deal of latitude in drafting the waivers to be signed by injured employees. However, both Texas courts and the Texas legislature have now placed multiple guidelines on both the form of the waiver as well as the time for the waiver to be presented to the injured employee.
In 2001, the Texas Legislature amended Section 406.033 of the Texas Labor Code in order to specifically invalidate pre-injury waivers signed by employees of non-subscribers. As a result of the 2001 amendment, an employee may not waive his right to bring a lawsuit against a non-subscriber employer prior to an alleged on-the-job injury. Waivers signed by an employee after an injury may be valid and enforceable under Texas law if they otherwise comply with the strict requirements set forth in the Act.
Waivers that attempt to limit an injured employee’s right to sue should be carefully crafted by attorneys familiar with the requirements set forth by the Texas Labor Code in order to most effectively stand up to a challenge through litigation.