While Section 406.033 of the Texas Labor Code clearly establishes that nonsubscribing employers cannot rely on the defense that an employee assumed the risk of injury in performing the activity that led to the employee’s on-the-job injury, Texas courts have not been consistent in the application of this provision to the employer’s duty to warn of open and obvious dangers. While some recent decisions of the Supreme Court of Texas have suggested that an employer has no duty to maintain a safe workplace in the context of open or obvious hazards, at least one decision by the Supreme Court of Texas has abolished the doctrine that there is no duty to warn of open and obvious hazards in premises liability case. This has left unresolved a very important question for nonsubscribing employers: is there a duty to warn employees of open and obvious hazards in the workplace?

Last year, the United States Court of Appeals for the Fifth Circuit issued a decision in Austin v. Kroger Texas L.P., 746 F.3d 191 (2014). In that case, the Fifth Circuit recognized that while the Texas Supreme Court has repeatedly recognized an employer’s non-delegable duty to provide employees with a safe workplace, the nature and scope of this general duty is unclear when an employee is aware of the hazard or risk involved. The Fifth Circuit, noting what appears to be an analysis that “may not be so straightforward,” certified two questions to the Supreme Court of Texas:

  1. Pursuant to Texas law, including §406.033(a)(1)-(3) of the Texas Labor Code, can an employee recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy?
  2. Does the employee’s awareness of the defect eliminate the employer’s duty to maintain a safe workplace?

The Supreme Court of Texas has accepted the certified questions from the Fifth Circuit, and several amicus curiae briefs have been filed. Oral arguments were held between December 15, 2014, and March 12, 2015, but the court has yet to answer either of the certified questions. While nonsubscribing employers and the attorneys representing them anxiously await answers to these important questions, the law regarding the duty to warn employees of open and obvious hazards remains vague and unclear.