GQ Corner
Q. We are a political subdivision, and we need some guidance regarding a new hire who prefers to “opt out” of workers’ compensation and instead pursue a common law right of action. Do employees have an option to do this?
A. There are different standards for employees of political subdivisions and for “regular” employees of private WC subscribers, so it is good that you reached out about this.
Sec. 406.034(b) of the Texas WC Act provides that an employee who desires to retain the common-law right of action to recover damages for personal injuries or death shall notify the employer in writing that the employee waives coverage and retains all rights of action under common law, and the employee must notify the employer not later than the fifth (5th) day after the date on which the employee (1) begins their employment; or (2) receives written notice from the employer that the employer has obtained workers’ compensation insurance coverage if the employer is not a covered employer at the time of the employment but later obtains the coverage.
However, it is clear that this option is simply not available for employees of political subdivisions, pursuant to Chapter 504 of the Texas Labor Code. Among other things, Chapter 504 governs coverage for employees of political subdivisions.
There are 2 important provisions within that chapter:
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- 504.002(a)(5) specifically states that Sec. 406.034 does not apply to and is not included in Chapter 504;
- 504.018(b) makes very clear that “employees of a political subdivision are conclusively considered to have accepted the compensation provisions instead of common-law or statutory liability or cause of action, if any, for injuries received in the course of employment or death resulting from injuries received in the course of employment.”
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Please feel free to reach out to the attorneys of FOL by email at GQS@fol.com with any questions about coverage.
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