Can a Non-Subscriber in Texas Issue a BFOE to an Injured Worker?

Texas is unusual in that most private employers can choose not to participate in the state's workers' compensation system. These employers are called non-subscribers. Since they operate outside the Texas Workers' Compensation Act, the rules that apply to subscriber employers, including the use of a Bona Fide Offer of Employment (BFOE), do not apply to them.

What Is a BFOE?

A BFOE is a formal offer made by a subscriber employer under the Texas workers’ comp system. It allows the employer to bring an injured worker back in a modified or light-duty role. When properly issued, a BFOE:

• Must follow Texas Department of Insurance–Division of Workers’ Compensation (TDI–DWC) rules;
• Impacts the worker’s Temporary Income Benefits (TIBs);
• Provides certain legal protections for the employer.

Why Non-Subscribers Cannot Issue a BFOE

Because non-subscribers are not part of the Texas workers’ comp system, they:

• Cannot issue a recognized BFOE under state law;
• Do not have access to the protections or procedures that come with the workers’ comp system;
• Must rely on their own company policies, occupational injury benefit plans (if any), and general employment practices.

What Non-Subscribers Can Do

Even though they cannot issue a formal BFOE, non-subscribers still have options. They can:

• Offer light duty or transitional work directly to the injured employee;
• Develop a return-to-work program under their own policies;
• Use employment agreements and benefit plans to encourage participation in modified duty.

It’s important to note that these offers are private employment arrangements. They do not carry any standing under Texas workers’ compensation laws.

Key Takeaway

If you are a non-subscriber in Texas, you cannot issue a BFOE. You may offer modified duty, but it will not have the same legal effect as a BFOE under the state’s workers’ compensation system.