§ 85A-38. Securing compensation.

A.  An employer shall secure compensation to employees under this act in one of the following ways:

1.  By insuring and keeping insured the payment of compensation with any stock corporation, mutual association, or other concerns authorized to transact the business of workers' compensation insurance in this state.  When an insurer issues a policy to provide workers' compensation benefits under the provisions of this act, it shall file a notice with the Commission containing the name, address, and principal occupation of the employer, the number, effective date, and expiration date of the policy, and such other information as may be required by the Commission.  The notice shall be filed by the insurer within thirty (30) days after the effective date of the policy.  Any insurer who does not file the notice required by this paragraph shall be subject to a fine by the Commission of not more than One Thousand Dollars ($1,000.00);

2.  By obtaining and keeping in force guaranty insurance with any company authorized to do guaranty business in this state.  Each company that issues workers' compensation guaranty insurance shall file a copy of the contract with the Commission within thirty (30) days after the effective date of the contract.  Any company that does not file a copy of the contract as required by this paragraph shall be subject to a fine by the Commission of not more than One Thousand Dollars ($1,000.00);

3.  By furnishing satisfactory proof to the Commission of the employer's financial ability to pay the compensation.  The Commission, under rules adopted by the Insurance Department, shall require any employer that has:

a.less than one hundred employees or less than One Million Dollars ($1,000,000.00) in net assets to:

(1)deposit with the Commission securities, an irrevocable letter of credit or a surety bond payable to the state, in an amount determined by the Commission which shall be at least an average of the yearly claims for the last three (3) years, or

(2)provide proof of excess coverage with such terms and conditions as is commensurate with their ability to pay the benefits required by the provisions of this act, and

b.one hundred or more employees and One Million Dollars ($1,000,000.00) or more in net assets to:

(1)secure a surety bond payable to the state, or an irrevocable letter of credit, in an amount determined by the Commission which shall be at least an average of the yearly claims for the last three (3) years, or

(2)provide proof of excess coverage with terms and conditions that are commensurate with their ability to pay the benefits required by the provisions of this act;

4.  By forming a group self-insurance association consisting of two or more employers which shall have a common interest and which shall have entered into an agreement to pool their liabilities under the Administrative Workers’ Compensation Act.  Such agreement shall be subject to rules of the Commission.  Any employer, upon application to become a member of a group self-insurance association, shall file with the Commission a notice, in such form as prescribed by the Commission, acknowledging that the employer accepts joint and several liability.  Upon approval by the Commission of such application for membership, said member shall be a qualified self-insured employer; or

5.  By any other security as may be approved by the Commission and the Insurance Department.

B.  The Commission may waive the requirements of this section in an amount which is commensurate with the ability of the employer to pay the benefits required by the provisions of this act.  Irrevocable letters of credit required by this subsection shall contain such terms as may be prescribed by the Commission and shall be issued for the benefit of the state by a financial institution whose deposits are insured by the Federal Deposit Insurance Corporation.

C.  An employer who does not fulfill the requirements of this section is not relieved of the obligation to pay compensation under this act.  The security required under this section, including any interest, shall be maintained by the Commission as provided in this act until each claim for benefits is paid, settled, or lapses under this act, and costs of administration of such claims are paid.

D.  Failure on the part of any employer to secure the payment of compensation provided in this act shall have the effect of enabling the Commission to assert the rights of an injured employee against the employer.

E.  Any employer that knowingly provides false information to the Commission for purposes of securing or maintaining a self-insurance permit shall be guilty of a felony and subject to a maximum fine of Ten Thousand Dollars ($10,000.00).

Added by Laws 2013, c. 208, § 38, eff. Feb. 1, 2014.