Is workers' compensation required for Texas employers?
No. Texas is the only state where private-sector coverage is genuinely optional — and opting out costs three legal defences.
Last updated: August 02, 2026
Direct Answer
No. Texas is the only state where workers' compensation coverage is optional for most private employers. Employers who carry coverage are subscribers and receive important legal protections. Employers who opt out are non-subscribers: they must file an annual notice with the state, post required notices, and they lose key legal defenses if an injured employee sues.
Controlling authority: Tex. Labor Code sec. 406.033 and TDI-DWC non-subscriber requirements. A non-subscriber loses the contributory negligence, assumption of risk, and fellow-servant defences.
What Subscribing Actually Buys You
Workers' compensation is a trade. The injured employee receives defined medical and income benefits without having to prove fault, and in exchange the subscribing employer is generally protected from most negligence lawsuits over the injury. That lawsuit protection is the real product, and it is what non-subscribers give up.
A non-subscriber can be sued directly for a workplace injury, and Texas law strips non-subscribers of the classic defenses: contributory negligence, assumption of the risk, and co-worker negligence. In practice, if the employee can show any employer negligence at all, the exposure is uncapped.
Texas is the only state in which private-sector workers’ compensation coverage is genuinely optional. That makes almost all national guidance on workplace injuries wrong for a Texas non-subscriber in one specific way: it assumes an exclusive-remedy system. A Texas non-subscriber faces an ordinary negligence suit and, under Tex. Labor Code sec. 406.033, cannot plead contributory negligence, assumption of the risk, or the fellow-servant rule. Only intentional self-injury and intoxication remain available.
| What changes | Subscriber | Non-subscriber |
|---|---|---|
| Employee’s remedy | The workers’ compensation system, essentially exclusive | A negligence lawsuit, with no statutory cap from the comp system |
| Contributory negligence defence | Not needed — fault is largely irrelevant | Prohibited. You may not argue the employee’s own carelessness |
| Assumption of the risk defence | Not needed | Prohibited. “They knew the job was dangerous” is unavailable |
| Fellow-servant rule | Not needed | Prohibited. A coworker’s negligence does not shift the blame |
| Defences that remain | n/a | Only two, and both are narrow: intentional self-injury and intoxication |
| What the employer must prove | Largely administrative | That it was not negligent — which is a far harder position than it sounds |
| Texas is unusual | Most states mandate coverage | Texas is the only state where private-sector coverage is genuinely optional |
What Non-Subscribers Must Do
Opting out is legal, but it is not paperwork-free. Non-subscribers must file the required annual notice with the Texas Department of Insurance, Division of Workers' Compensation, post workplace notices telling employees the company does not carry coverage, and notify new hires in writing. Many non-subscribers have never filed anything, which compounds the exposure.
Serious non-subscribers manage the risk deliberately: an occupational injury benefit plan, strong safety programs, a documented injury response process, and often insurance products built for non-subscribers. Going bare with none of that is the highest-risk position a Texas employer can hold.
| Obligation | Detail | Timing |
|---|---|---|
| File DWC Form-005 | Employer Notice of No Coverage or Termination of Coverage, filed with the Division | Annually, between 1 February and 30 April. Failure may draw administrative penalties. |
| Notify employees | Written notice that the employer does not carry workers’ compensation insurance | At hire, and posted |
| Notify on change | A new filing when coverage is obtained or terminated | On the change |
| Report injuries | Non-subscribers still report certain injuries and fatalities to the Division | As specified by the Division |
| Maintain OSHA records | Unchanged by non-subscriber status | Ongoing; Form 300A posted February to April |
| Who is exempt from filing | Employers whose employees are all exempt from coverage, such as certain domestic, farm and ranch workers | n/a |
Non-Subscriber Risks to Watch
The costs of getting this wrong arrive all at once, after an injury. Watch for these conditions.
- No coverage and no occupational injury benefit plan in place
- Required non-subscriber notices never filed or posted
- New hires never notified in writing about non-coverage
- No documented injury response and investigation process
- Physical, driving, or field work performed by employees of a bare non-subscriber
Decide the question against sec. 406.033, not against premium cost
Confirm your actual status first. Some employers believe they have coverage through a general liability policy that does not cover employee injuries at all. Then check the notice requirements: annual state filing, workplace postings, and written new-hire notices.
If you are a non-subscriber by choice, review whether that choice still fits your risk. The decision made at five office employees looks different at thirty employees doing physical work.
Workers' Comp Incident Cost Calculator
Totals the direct and indirect cost of a single incident, including the part nobody bills.
When the coverage decision needs review
Get help immediately if you are a non-subscriber and an injury has already happened, because response and documentation in the first days shape everything after.
If you are unsure whether to subscribe, an HR risk review can lay out the exposure in plain numbers so the decision is deliberate instead of inherited.
Get a Straight Answer for Your Situation
General rules only go so far. If this question is live in your organization right now, talk it through with a senior HR consultant before you act. One conversation now costs less than one claim later.
Contact UsThis page provides general HR information for employers and is not legal advice. For legal interpretation or representation, consult qualified employment counsel.