§ 85A-209. Qualified employer's liability.

A.  A qualified employer's liability under the benefit plan and otherwise prescribed in this act shall be exclusive and in place of all other liability of the qualified employer and any of its employees at common law or otherwise, for a covered employee's occupational injury or loss of services, to the covered employee, or the spouse, personal representative, parents, or dependents of the covered employee, or any other person.  The exclusive remedy protections provided by this subsection shall be as broad as the exclusive remedy protections of Section 5 of this act, and thus preclude a covered employee's claim against a qualified employer, its employees, and insurer for negligence or other causes of action.

B.  Except as otherwise provided by its benefit plan, or applicable federal law, a qualified employer is only subject to liability in any action brought by a covered employee or his or her dependent family members for injury resulting from an occupational injury if the injury is the result of an intentional tort on the part of the qualified employer.  An intentional tort shall exist only when the covered employee is injured because of willful, deliberate, specific intent of the qualified employer to cause such injury.  Allegations or proof that the qualified employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort.  The issue of whether an act is an intentional tort shall be a question of law for the court or the duly appointed arbitrator, as applicable.

C.  If an employee tests positive for intoxication, use of an illegal controlled substance, or a legal controlled substance that is used in contravention with a treating physician's orders within twenty-four (24) hours of being injured or reporting an injury, he or she shall not be eligible to receive benefits under a qualified employer's benefit plan.  In order to retain exclusive remedy and enjoy immunity from common law negligence claims, an employee shall be entitled to receive benefits under a qualified employer’s benefit plan if the employee can prove by a preponderance of the evidence that the acts described by this section were not the major cause of an injury.

D.  Any benefits paid under a qualified employer's benefit plan shall offset any other award against such qualified employer under subsection B of this section.

E.  Other than an action brought to enforce the provisions of the benefit plan, any action brought by a covered employee or his or her spouse, personal representative, parents, or dependents based on a claim against a qualified employer arising out of any occupational injury shall be filed no later than two (2) years from the date of the injury or death giving rise to such action.

Added by Laws 2013, c. 208, § 116, eff. Feb. 1, 2014.