Onsite Visits By The Texas Division of Workers’ Compensation–Texas Workers’ Compensation Law

On January 24, 2012, the Texas Division of Workers’ Compensation adopted amendments to rules 180.1, 180.3, 180.5, 180.8, 180.27 and adopted new rules 180.4, 180.9 and 180.10. 37 Tex. Reg. 691 (2012). The adopted rules became effective February 14, 2012. 37 Tex. Reg. 704 (2012). According to the Division, the adopted amended rules and adopted new rules implement statutory changes in House Bill 2605, which was enacted by the Legislature during the 82nd Regular Session. 37 Tex. Reg. 691 (2012).

In O’Connor v. Ortega, 480 U.S. 709, 718 (1987). the Supreme Court  delineated the boundaries of a workplace to include “those areas and items that are related to work and are generally within the employer’s control.”

The position of TDI is stated as follows:
“The Divison disagrees that the adopted rules pertaining to unannounced visits are invalid because they are based on a
statute that violates Article 1, § 9 and § 29, of the Texas Constitution and the Fourth Amendment to the
United States Constitution. Labor Code § 414.005 allows the Commissioner or the investigation unit, as
often as the Commissioner considers necessary, to review the operations of a person regulated by the Division,
including an agent of the person, to determine compliance with the Act. This statute authorizes the Division to
conduct an on-site visit to the person’’s premises during this review and the on-site visit may be unannounced.
During an on-site visit the person must make available to the Division all records relating to the person’s
participation in the workers’ compensation system. Further, this statute requires the Commissioner by rule to
prescribe the procedures to be used for announced and unannounced on-site visits including specifying the
types of records subject to inspection. This rule is adopted pursuant to this legislative directive. Labor Code
§ 414.005 and these rules adopted thereto provide for reasonable on-site visits and inspections and do not
violate the state and federal constitutional provisions cited by commenter. Pursuant to this statute and these
adopted rules only persons regulated by the Division and their agents could be subject to an on-site visit, and
an on-site visit will only involve laws and regulations under the Act. The adopted rules define the scope of an
on-site visit and limit the discretion of the Division’s staff conducting the visit. For example, the adopted rule
requires prior or contemporaneous written notice of the visit, and this notice will specify the date, time,
location, and conditions of the visit, the alleged violations that are the subject of the visit, and the types of
records that must be made available to the Division during the visit.”

 

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