CHAPTER 411. WORKERS' HEALTH AND SAFETY - Texas Statutes

LABOR CODE

TITLE 5. WORKERS' COMPENSATION

SUBTITLE A. TEXAS WORKERS' COMPENSATION ACT

CHAPTER 411. WORKERS' HEALTH AND SAFETY

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 411.001. DEFINITIONS. In this chapter:

(1) Repealed by Acts 2005, 79th Leg., Ch. 265, Sec. 7.01(23),

eff. September 1, 2005.

(2) "Employer" means a person who makes a contract of hire.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 7.01(23), eff. September 1, 2005.

Sec. 411.002. APPLICATION. (a) An employer who obtains

workers' compensation insurance coverage is subject to this

chapter.

(b) An employer is subject to this chapter if the employer:

(1) is not required to and does not obtain workers' compensation

insurance coverage; and

(2) employs five or more employees not exempt from workers'

compensation insurance coverage.

(c) Repealed by Acts 1995, 74th Leg., ch. 76, Sec. 9.54(b), eff.

Sept. 1, 1995.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.54(b), eff. Sept.

1, 1995.

Sec. 411.003. IMMUNITY FROM CERTAIN LIABILITY. (a) An

insurance company, the agent, servant, or employee of the

insurance company, or a safety consultant who performs a safety

consultation under this chapter has no liability for an accident,

injury, or occupational disease based on an allegation that the

accident, injury, or occupational disease was caused or could

have been prevented by a program, inspection, or other activity

or service undertaken by the insurance company for the prevention

of accidents in connection with operations of the employer.

(b) The immunity provided by Subsection (a) does not affect the

liability of an insurance carrier for compensation or as

otherwise provided in this subtitle.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by Acts 1999, 76th Leg., ch. 957, Sec. 1.01, eff. Sept.

1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.2085, eff. September 1, 2005.

Sec. 411.004. EXCLUSIVE REMEDY. Except as specifically provided

by Subchapter F, this chapter does not create an independent

cause of action at law or in equity. This chapter provides the

sole remedy for violation of this chapter.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

SUBCHAPTER B. GENERAL POWERS AND DUTIES OF DIVISION

Sec. 411.011. COORDINATION AND ENFORCEMENT OF STATE LAWS AND

RULES. The division shall coordinate and enforce the

implementation of state laws and rules relating to workers'

health and safety issues.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 411.012. COLLECTION AND ANALYSIS OF INFORMATION. (a) The

division shall collect and serve as a repository for statistical

information on workers' health and safety. The division shall

analyze and use that information to:

(1) identify and assign priorities to safety needs; and

(2) better coordinate the safety services provided by public or

private organizations, including insurance carriers.

(b) The division shall coordinate or supervise the collection by

state or federal entities of information relating to job safety,

including information collected for the supplementary data system

and the annual survey of the Bureau of Labor Statistics of the

United States Department of Labor.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 411.013. FEDERAL CONTRACTS AND PROGRAMS. The division may:

(1) enter into contracts with the federal government to perform

occupational safety projects; and

(2) apply for federal funds through any federal program relating

to occupational safety.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.209, eff. September 1, 2005.

Sec. 411.014. EDUCATIONAL PROGRAMS; COOPERATION WITH OTHER

ENTITIES. (a) The division shall promote workers' health and

safety through educational and other innovative programs

developed by the department, the division, or other state

agencies.

(b) The division shall cooperate with other entities in the

development and approval of safety courses, safety plans, and

safety programs.

(c) The division shall cooperate with business and industry

trade associations, labor organizations, and other entities to

develop means and methods of educating employees and employers

concerning workplace safety.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.2095, eff. September 1, 2005.

Sec. 411.015. EDUCATIONAL PUBLICATIONS. (a) The division shall

publish or procure and issue educational books, pamphlets,

brochures, films, videotapes, and other informational and

educational material.

(b) Specific educational material shall be directed to high-risk

industries and employments and must specifically address means

and methods of avoiding high frequency, but preventable, workers'

injuries.

(c) Other educational material shall be directed to business and

industry generally and must specifically address means and

methods of avoiding common workers' injuries.

(d) The division shall make specific decisions regarding the

issues and problems to be addressed by the educational materials

after assigning appropriate priorities based on frequency of

injuries, degree of hazard, severity of injuries, and similar

considerations.

(e) The educational materials provided under this section must

include specific references to:

(1) the requirements of state and federal laws and regulations;

(2) recommendations and practices of business, industry, and

trade associations; and

(3) if needed, recommended work practices based on

recommendations made by the division for the prevention of

injury.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 411.016. PEER REVIEW SAFETY PROGRAM. The division shall

certify safe employers to provide peer review safety programs.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 411.017. ADVISORY SERVICE TO INSURANCE CARRIERS. The

division shall advise insurance carrier loss control service

organizations of safety needs and priorities developed by the

division and of:

(1) hazard classifications, specific employers, industries,

occupations, or geographic regions to which loss control services

should be directed; or

(2) the identity and types of injuries or occupational diseases

and means and methods for prevention of those injuries or

diseases to which loss control services should be directed.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 411.018. FEDERAL OSHA COMPLIANCE. In accordance with

Section 7(c), Occupational Safety and Health Act of 1970 (29

U.S.C. Section 656), the division shall:

(1) consult with employers regarding compliance with federal

occupational safety laws and rules; and

(2) collect information relating to occupational safety as

required by federal laws, rules, or agreements.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

SUBCHAPTER C. JOB SAFETY INFORMATION SYSTEM

Sec. 411.031. JOB SAFETY INFORMATION SYSTEM; COOPERATION WITH

OTHER AGENCIES. (a) The division shall maintain a job safety

information system.

(b) The division shall obtain from any appropriate state agency,

including the Texas Workforce Commission, the Department of State

Health Services, and the Department of Assistive and

Rehabilitative Services, data and statistics, including data and

statistics compiled for rate-making purposes.

(c) The division shall consult with the Texas Workforce

Commission in the design of data information and retrieval

systems to accomplish the mutual purposes of the division and the

Texas Workforce Commission.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.210, eff. September 1, 2005.

Sec. 411.032. EMPLOYER INJURY AND OCCUPATIONAL DISEASE REPORT;

ADMINISTRATIVE VIOLATION. (a) An employer shall file with the

division a report of each:

(1) on-the-job injury that results in the employee's absence

from work for more than one day; and

(2) occupational disease of which the employer has knowledge.

(b) The commissioner shall adopt rules and prescribe the form

and manner of reports filed under this section.

(c) An employer commits an administrative violation if the

employer fails to report to the division as required under

Subsection (a) unless good cause exists, as determined by the

commissioner, for the failure.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by Acts 1995, 74th Leg., ch. 980, Sec. 1.32, eff. Sept.

1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.211, eff. September 1, 2005.

Sec. 411.033. JOB SAFETY DATA BASE. The job safety information

system must include a comprehensive data base that incorporates

all pertinent information relating to each injury reported under

Section 411.032, including:

(1) the age, sex, wage level, occupation, and insurance company

payroll classification code of the injured employee;

(2) the nature, source, and severity of the injury;

(3) the reported cause of the injury;

(4) the part of the body affected;

(5) any equipment involved in the injury;

(6) the number of prior workers' compensation claims by the

employee;

(7) the prior loss history of the employer;

(8) the standard industrial classification code of the employer;

(9) the classification code of the employer; and

(10) any other information considered useful for statistical

analysis.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 411.034. CONFIDENTIALITY REQUIREMENT; OFFENSE; PENALTY.

(a) The identity of an employee in a report filed under Section

411.032 is confidential and may not be disclosed as part of the

job safety information system.

(b) A person commits an offense if the person knowingly,

intentionally, or recklessly publishes, discloses, or distributes

information that is confidential under this section to a person

not authorized to receive the information.

(c) A person commits an offense if the person knowingly,

intentionally, or recklessly receives information that is

confidential under this section and that the person is not

authorized to receive.

(d) An offense under this section is a Class A misdemeanor.

(e) An offense under this section may be prosecuted in a court

in the county where the information was unlawfully received,

published, disclosed, or distributed.

(f) A district court in Travis County has jurisdiction to enjoin

the use, publication, disclosure, or distribution of confidential

information under this section.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by Acts 1995, 74th Leg., ch. 980, Sec. 1.33, eff. Sept.

1, 1995.

Sec. 411.035. USE OF INJURY REPORT. A report made under Section

411.032 may not be considered to be an admission by or evidence

against an employer or an insurance carrier in a proceeding

before the division or a court in which the facts set out in the

report are contradicted by the employer or insurance carrier.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.212, eff. September 1, 2005.

SUBCHAPTER E. ACCIDENT PREVENTION SERVICES

Sec. 411.061. ACCIDENT PREVENTION SERVICES; PREREQUISITE FOR

LICENSE. (a) As a prerequisite for writing workers'

compensation insurance in this state, an insurance company must

maintain or provide accident prevention facilities that are

adequate to provide accident prevention services required by the

nature of its policyholders' operations.

(b) To implement a program of accident prevention services, a

facility must include:

(1) surveys;

(2) recommendations;

(3) training programs;

(4) consultations;

(5) analyses of accident causes;

(6) industrial hygiene; and

(7) industrial health services.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by Acts 2001, 77th Leg., ch. 172, Sec. 4, eff. Sept. 1,

2001.

Sec. 411.063. ACCIDENT PREVENTION PERSONNEL. (a) To provide

qualified accident prevention personnel and services, an

insurance company may:

(1) employ qualified personnel;

(2) retain qualified independent contractors;

(3) contract with the policyholder to provide the personnel and

services; or

(4) use a combination of the methods provided by this

subsection.

(b) Repealed by Acts 2005, 79th Leg., Ch. 265, Sec. 7.01(26),

eff. September 1, 2005.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 7.01(26), eff. September 1, 2005.

Sec. 411.064. INSPECTIONS. (a) The division may conduct

inspections to determine the adequacy of the accident prevention

services required by Section 411.061 for each insurance company

writing workers' compensation insurance in this state.

(b) If, after an inspection under Subsection (a), an insurance

company's accident prevention services are determined to be

inadequate, the division shall reinspect the accident prevention

services of the insurance company not earlier than the 180th day

or later than the 270th day after the date the accident

prevention services were determined by the division to be

inadequate.

(c) The insurance company shall reimburse the division for the

reasonable cost of the reinspection, including a reasonable

allocation of the division's administrative costs incurred in

conducting the inspections.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by Acts 1999, 76th Leg., ch. 957, Sec. 3.01, eff. Sept.

1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.213, eff. September 1, 2005.

Sec. 411.065. ANNUAL INFORMATION SUBMITTED BY INSURANCE COMPANY.

(a) Each insurance company writing workers' compensation

insurance in this state shall submit to the division at least

once a year detailed information on the type of accident

prevention facilities offered to that insurance company's

policyholders.

(b) The information must include:

(1) the amount of money spent by the insurance company on

accident prevention services;

(2) the number of site inspections performed;

(3) accident prevention services for which the insurance company

contracts;

(4) a breakdown of the premium size of the risks to which

services were provided;

(5) evidence of the effectiveness of and accomplishments in

accident prevention; and

(6) any additional information required by the commissioner.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.214, eff. September 1, 2005.

Sec. 411.066. NOTICE TO POLICYHOLDERS. Notice that accident

prevention services are available to the policyholder from the

insurance company must appear in at least 10-point bold type on

the front of each workers' compensation insurance policy

delivered or issued for delivery in this state.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 411.067. DIVISION PERSONNEL. (a) The division shall

employ the personnel necessary to enforce this subchapter,

including at least 10 safety inspectors to perform inspections at

a job site and at an insurance company to determine the adequacy

of the accident prevention services provided by the insurance

company.

(b) Repealed by Acts 2005, 79th Leg., Ch. 265, Sec. 7.01(27),

eff. September 1, 2005.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.215, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch.

265, Sec. 3.216, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch.

265, Sec. 7.01(27), eff. September 1, 2005.

Sec. 411.068. ADMINISTRATIVE VIOLATION. (a) An insurance

company commits a violation if the insurance company does not:

(1) maintain or provide the accident prevention services

required by this subchapter; or

(2) use the services in a reasonable manner to prevent injury to

employees of its policyholders.

(b) A violation under Subsection (a) is an administrative

violation.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.217, eff. September 1, 2005.

SUBCHAPTER F. EMPLOYEE REPORTS OF SAFETY VIOLATIONS; EDUCATIONAL

MATERIALS

Sec. 411.081. TELEPHONE HOTLINE. (a) The division shall

maintain a 24-hour toll-free telephone service in English and

Spanish for reports of violations of occupational health or

safety law.

(b) Each employer shall notify its employees of this service in

a manner prescribed by the commissioner. The commissioner shall,

by rule, require the notice to be posted in English and Spanish,

as appropriate.

(c) The commissioner shall adopt rules requiring that the notice

required by Subsection (b) be posted:

(1) in a conspicuous place in the employer's place of business;

and

(2) in sufficient locations to be convenient to all employees.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.219, eff. September 1, 2005.

Sec. 411.082. EMPLOYER RETALIATION PROHIBITED. An employer may

not suspend or terminate the employment of or otherwise

discriminate against an employee for using the telephone service

to report in good faith an alleged violation of an occupational

health or safety law.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 411.083. JUDICIAL RELIEF FOR EMPLOYER RETALIATION. (a) An

employee whose employment is terminated or suspended in violation

of Section 411.082 is entitled to:

(1) reinstatement to the employee's former position;

(2) compensation for wages lost during the period of suspension

or termination; and

(3) reinstatement of any fringe benefits or seniority rights

lost because of the suspension or termination.

(b) An employee seeking relief under this section must file suit

not later than the 90th day after the alleged conduct of the

employer occurred or was discovered or discoverable by the

employee through reasonable diligence.

(c) An employee who prevails in a suit under this section is

entitled to recover court costs and reasonable attorney's fees.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 411.084. EDUCATIONAL PUBLICATIONS. (a) The division shall

provide to employers and employees educational material,

including books, pamphlets, brochures, films, videotapes, or

other informational material.

(b) Educational material shall be provided to employees in

English and Spanish.

(c) The department shall adopt minimum content requirements for

the educational material required under this section, including:

(1) information on an employee's right to report an unsafe

working environment;

(2) instructions on how to report unsafe working conditions and

safety violations; and

(3) information on state laws regarding retaliation by

employers.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.220, eff. September 1, 2005.

SUBCHAPTER H. GENERAL REQUIREMENTS RELATING TO OCCUPATIONAL

HEALTH AND SAFETY

Sec. 411.101. LEGISLATIVE POLICY; PURPOSE. It is the policy of

this state to protect the health and welfare of its people and to

reduce and, to every reasonable extent, eliminate the causes of

loss of production, reduction of work hours, temporary and

permanent incapacity of workers, and increases in certain

insurance rates by:

(1) promoting the adoption, application, and implementation of

safety measures in industry and enterprise;

(2) protecting workers against unsafe and hazardous working

conditions; and

(3) encouraging correction of any unsafe and hazardous working

conditions in industry and enterprise.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.54(a), eff. Sept.

1, 1995.

Sec. 411.102. DEFINITIONS. In this subchapter:

(1) Repealed by Acts 2005, 79th Leg., Ch. 265, Sec. 7.01(28),

eff. September 1, 2005.

(2) "Employee" means an individual who works for an employer for

compensation. The term does not include an individual employed to

perform domestic services in a private residence.

(3) "Employer" means a person who has control or custody of any

employment, place of employment, or employee. The term does not

include a carrier, as that term is used in Title 49, United

States Code, that is regulated by the Interstate Commerce

Commission, except that the term includes a railroad.

(4) "Place of employment" means a location, other than a private

residence where domestic service is performed, where:

(A) a trade, industry, or business is temporarily or permanently

conducted; or

(B) an employee is directly or indirectly employed by another

for direct or indirect gain.

(5) "Safe" as applied to employment or places of employment

means freedom from occupational injury for employees to the

extent reasonably permitted by the nature of the employment.

(6) "Safeguard" means any practicable method of mitigating or

preventing occupational injury.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.54(a), eff. Sept.

1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 7.01(28), eff. September 1, 2005.

Sec. 411.103. DUTY OF EMPLOYER TO PROVIDE SAFE WORKPLACE. Each

employer shall:

(1) provide and maintain employment and a place of employment

that is reasonably safe and healthful for employees;

(2) install, maintain, and use methods, processes, devices, and

safeguards, including methods of sanitation and hygiene, that are

reasonably necessary to protect the life, health, and safety of

the employer's employees; and

(3) take all other actions reasonably necessary to make the

employment and place of employment safe.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.54(a), eff. Sept.

1, 1995.

Sec. 411.104. DIVISION DUTIES. (a) The division shall

administer this subchapter.

(b) In addition to the duties specified in this chapter, the

division shall perform other duties as required by the

commission.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.54(a), eff. Sept.

1, 1995.

Sec. 411.105. CONFIDENTIAL INFORMATION; PENALTY. (a) The

division and its employees may not disclose at a public hearing

or otherwise information relating to secret processes, methods of

manufacture, or products.

(b) The commissioner or an employee of the division commits an

offense if the commissioner or employee wilfully discloses or

conspires to disclose information made confidential under this

section. An offense under this subsection is a misdemeanor

punishable by a fine not to exceed $1,000 and by forfeiture of

the person's appointment as commissioner or as an employee of the

division.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.54(a), eff. Sept.

1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.221, eff. September 1, 2005.

Sec. 411.106. SAFETY CLASSIFICATION. (a) To establish a safety

classification for employers, the division shall:

(1) obtain medical and compensation cost information regularly

compiled by the department in performing rate-making duties and

functions regarding employer liability and workers' compensation

insurance; and

(2) collect and compile information relating to:

(A) the frequency rate of accidents;

(B) the existence and implementation of private safety programs;

(C) the number of work-hour losses because of injuries; and

(D) other facts showing accident experience.

(b) From the information obtained under Subsection (a), the

division shall classify employers as appropriate to implement

this subchapter.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.54(a), eff. Sept.

1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.222, eff. September 1, 2005.

Sec. 411.107. ELIMINATION OF SAFETY IMPEDIMENTS. The division

may endeavor to eliminate an impediment to occupational or

industrial safety that is reported to the division by an affected

employer. In attempting to eliminate an impediment the division

may advise and consult with an employer, or a representative of

an employer, who is directly involved.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.54(a), eff. Sept.

1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.223, eff. September 1, 2005.

Sec. 411.108. ACCIDENT REPORTS. The division may require an

employer and any other appropriate person to report accidents,

personal injuries, fatalities, or other statistics and

information relating to accidents on forms prescribed by and

covering periods designated by the commissioner.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.54(a), eff. Sept.

1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.224, eff. September 1, 2005.

Sec. 411.109. EFFECT ON OTHER LAW. This subchapter and Chapters

341 and 755, Health and Safety Code, to the extent possible shall

all be given effect.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.54(a), eff. Sept.

1, 1995.

Sec. 411.110. LABOR DISPUTES. (a) It is the intent of the

legislature that this subchapter, or an act performed under this

subchapter, may not be:

(1) used as an issue involved in a labor dispute; or

(2) used or asserted to advantage in collective bargaining by

employers, employees, or their respective representatives.

(b) Notwithstanding any other provision of this subchapter, this

subchapter does not apply to a place of employment while that

place of employment is subject to picketing or to a strike,

slowdown, or other work stoppage.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.54(a), eff. Sept.

1, 1995.