Exclusive Remedy Rules in Texas

State Snapshot

BASIC RULE

In Texas, workers’ compensation is the exclusive remedy of an employee who is injured at work. Tex. Labor Code § 408.001(a). 

This means that the employee cannot sue the employer in tort (where the employee likely would be able to obtain far greater monetary damages), such as by claiming that the employer’s negligence caused his injury. The rule also generally applies to prevent a deceased worker’s family members from suing the employer in tort.

The purpose of the provision is to give employers an incentive to obtain workers’ compensation coverage by granting them immunity from tort lawsuits. 

INTENTIONAL WRONG EXCEPTION

If an employer intentionally causes the injury, the exclusive remedy rule does not protect the employer from the injured worker’s tort claim.

To act intentionally, the employer must either:

1. Have a conscious desire to cause the injury; or 
2. Know the injury is substantially certain to occur.

Essentially, the employer must specifically intend to injure the worker. It must intend to cause a specific injury to a specific employee.

The following are not, by themselves, enough to show intent:

• The employer knowingly permitted a dangerous work condition to exist.
• The employer knowingly instructed the employee to perform an extremely dangerous task.
• The employer wilfully failed to provide a safe place to work.
• The employer wilfully violated a safety law.

GROSS NEGLIGENCE-WRONGFUL DEATH EXCEPTION

If an employee dies from a work-related injury, his family may be able to sue the employer for wrongful death. This is only the case if the family member(s) can demonstrate that the employer acted with gross negligence (or with intent). Tex. Labor Code § 408.001(b).

To establish gross negligence, the family must show:

1. When seen objectively from the employer’s standpoint at the time of the incident, the employer’s act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
2. The employer was subjectively aware of the risk, but proceeded with conscious indifference to others’ rights, safety, or welfare.

NON-SUBSCRIBER EXCEPTION

In Texas, employers can opt out of the workers’ compensation system and choose not to carry workers’ compensation insurance. Such employers are known as “non-subscribers.” Employers who opt out are not protected by the exclusivity rule. Thus, an injured worker can generally sue them in tort.

Note: If sued, a non-subscriber employer may be able to assign some liability to third parties under Texas’ proportionate responsibility statute. See In re: East Texas Medical Center Athens, No. 23-1039 (Tex. 04/25/25).

“THIRD PARTY” LAWSUITS

Employees can still sue third parties (e.g., equipment manufacturers, negligent drivers, contractors) whose negligence caused or contributed to their injury. 

Note: If the employee recovers from a third party, the workers’ compensation carrier may assert a subrogation lien to recover benefits it already paid the employee.

LAWSUITS BY STAFFING COMPANY EMPLOYEES

Generally, a company that uses a worker assigned to it by a staffing agency is protected by the exclusive remedy provision. Thus, if the temporary employee is injured while working for the staffing company’s client, even though the staffing agency is technically the employer, he cannot sue the company where is working if he is injured on the job.

AFFIRMATIVE DEFENSE

The exclusive-remedy provision is an affirmative defense. Thus, an employer asserting it must raise the issue when asking the court to grant it summary judgment, or else resolve the issue at trial. 

RECENT CASES
Lilly v. Weisinger, No. 09-23-00258-CV (Tex. App. 08/28/24)

The employee was injured when his legs were caught in a hay tedder. At the time, he was working for a water well drilling company but had been instructed to assist with hay tedding at the owner’s personal harm. He argued that the exclusive remedy provision did not bar his negligence claim because his employer was in the pump and well business, not hay tedding. The court ruled that because the worker was an employee of the company at the time of the injury and covered by workers' compensation insurance, his lawsuit was barred by the exclusive remedies provision. The court reasoned that the term employee "who is directed by the employer temporarily to perform services outside the usual course and scope of the employer's business.”

Weali v. BWFS Indus., LLC, No. 14-23-00620-CV (Tex. App. 06/06/24)

An employee of a temporary staffing agency, In-Fuse, was assigned to work for a vessel fitter, BWFS. A co-worker caused a metal grating to land on his hand, partially amputating a finger. The employee sued the BWFS for negligence. The court concluded that workers’ compensation was the employee’s only legal remedy.

Lane v. Odle, Inc., 2024 WL 3897109 (Tex. App. 08/22/24)

A worker was injured at work and sued his employer alleging that the employer had been negligent and was a nonsubscriber under the Texas Workers' Compensation Act. The court pointed out that the employer presented evidence showing workers' compensation insurance coverage that directly referenced Texas and some of Texas's Labor Code provisions as well as contact information for Texas agencies. Additionally, the worker acknowledged receiving benefits under the policy, and his complaints that there was no evidence that the policy had been approved by Texas or registered with the state presented only potential administrative violations under the TWCA.

Learn more about the ins and outs of Texas workers' compensation law (plus 52 other jurisdictions) on Simply Research

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