Generally speaking, under the Act an employee has five (5) days to notify the employer of 

his/her on-the-job accident.  Oftentimes, of course, the employer will know about an on-the-job 

injury through a First Report of Injury or through coworkers and supervisory personnel 

witnessing it.  Furthermore, there are exceptions to the five-day rule if the employee can show 

that he/she was not able to give notice due to physical or mental incapacity (such as being in the 

hospital) or for other good reason.  This is known as a “savings” provision and it protects 

employees from a short and sometimes harsh notice rule.  However, there is an additional and 

absolute ninety (90) day deadline after the date of the accident which the employee must meet, 

without regard to the reason for the failure to notify.  Section 25-5-78 of the Act says, 

“notwithstanding any other provision of this section, no compensation shall be payable unless 

written notice is given within 90 days after the occurrence of the accident or, if death results, 

within 90 days after the death.”  This ninety-day notice requirement is mandatory and there have 

been instances in Alabama cases where the deadline was not met by the employee and coverage 

was denied.

In other words, the rule is this:  you’re probably excused while you’re lying in the hospital bed 

from filing a written notice within 5 days of the accident; you are not excused if you wait 90 

days after the accident occurred to give written notice.  How to avoid trouble?  Report your 

accident as soon as you can and you’ll be covered.

The Alabama Workers Compensation Act, while removing two potentially devastating 

defenses (contributory negligence and assumption of the risk, based on the previous “at fault” 

laws that protected employers) does provide some specific affirmative defenses to the modern 

employer.  One of those affirmative defenses is called “willful misconduct”.  Specifically, an 

employer (when the misconduct is pleaded and proved) can defend against compensation 

liability where the employee consciously or intentionally violated a law or a prescribed rule of 

conduct.  “Willful” here basically means intentionally committing the act knowing that it is 

likely to result in serious injury.   A good example would be a miner who violated a known 

company traffic rule, driving through a main haulage-way, without first stopping to check for 

clearance, resulting in an accidental injury to himself.  In essence, by deliberately ignoring the 

rule, he caused his own injury.  If a rule promotes the safety of the worker or other workers, you 

can bet that the court will find the rule to be a reasonable one and a willful violation will 

probably forfeit compensation.

The lesson to be learned:  If there is a reasonable safety rule and the employee knows about it, 

he/she should follow the rule.  Wear the safety glasses, put on the steel-toed boots, pay attention 

to the traffic signs and you’ll have coverage if you’re hurt.
 

COVERAGE

1.  In January 1919, Alabama enacted the Alabama Workers Compensation Act (“the Act”).  The 

goal of the Act was to “define the liabilities of employers of workmen for injuries received by 

the workman while in the service of the employer.”  The goal of the Act was to establish a fair 

system of compensation for employees injured while in the service of employers in the State of 

Alabama and it attempted to accomplish that goal by establishing a “no fault” and “exclusive” 

remedy for the injured employee.

Who are covered employers and employees under the Act?  It is presumed that every employer 

and employee has accepted, and comes under, the articles of the Act unless otherwise specified 

in the Act.  This generally means that all employers and employees in the State of Alabama are 

covered under the Act unless they elect out of coverage.  Section 25-5-50(a) allows employers to 

opt out of the Act by written notification to each employee to its withdrawal from coverage and 

posting a notice conspicuously in the workplace that workers compensation insurance coverage 

is not available.  While this could be done, it is an absolute rarity because by choosing to elect 

out of coverage, an employer is exposed to liability for personal injury damages without any of 

its common law defenses, exposing it to expanded liability with little way to defend itself.  In 

other words, with the exception of the specific exclusions mention in the Act (i.e., domestic 

employees, employers of farm laborers, casual employers, employers who regularly employ less 

than five employees, and municipalities having a population of less than 2000) the presumption, 

again, is that in the Alabama workplace there is coverage under the Alabama Workers 

Compensation Act for almost all employees