Duty of Care: Employer Liability for Employees Abroad
Large employers often sponsor employee travel to other countries, but may not be fully prepared to accept liability for employees abroad. Recent outbreaks of Ebola, H7N9 (bird flu) and the Zika virus, coupled with President Obama's policies that encourage expansion into Asia, have brought the topic of liability risk from employees abroad to the fore.
What's an employer to do? Prohibit all travel to southern China, a major global manufacturing center?
Not likely, yet organizations should make sure that "duty of care," a legal obligation to provide reasonable care to employees, is met. According to The Society for Human Resource Management (SHRM), many organizations sending people overseas are not equipping their employees properly to handle disease, natural and man-made disasters and other dangers they could encounter in their locales.
Failure to do so, however, can make an employer subject to a negligence action in court.
From Incidental to Serious: Foreign Worker Safety Issues
Employee risks abroad range from the incidental to the grave and include the following:
- Auto accidents while on company business
- Emergency hospitalization
- Immunization, allergies
- Violations of foreign law, imprisonment
- Kidnapping threats to employee or family members
- Injury or death
For each of these risk areas, employers should be familiar with the proper actions to address an incident. For example, if an employee requires hospitalization, employers should be familiar with health care laws and insurance coverage in the particular nation or region.
The problem is serious enough that in 2009 the Global Business Travel Association (GBTA) developed an entire framework around it, which they termed the Travel Risk Management Maturity Model (TRM3). The model shows employers how to improve their risk profile and reduce liability for employees abroad.
Know the Law
Assessing legal risk in this area is made difficult by several factors. First, case law is sparse and tends to rely on general negligence ("tort") claims. This is the main reason that "duty of care" is the centerpiece for employer concerns.
Second, and potentially even more pitfall-ridden, is that the scope of concern is not only U.S. law, but applicable local laws in every jurisdiction where an employer operates. HR risk managers may, therefore, require indigenous legal expertise. For instance, there are often issues of local law as well: anti-bribery rules, local customs regulations applicable to company-owned equipment and payment of local taxes.
Documentation
To make it clear that employees have ventured into high risk areas voluntarily and with complete foreknowledge of that risk, additional documentation might help. Employers may wish to consider having employees sign "Acknowledgment of Risk" documents to strengthen the employer's position.
But according to White and Case LLP from an article on Lexology, employers who choose this avenue should do so knowing that such documents are "fragile" and "unlikely to be enforced." Employers should also document all measures taken, not only to inform but to protect employees working overseas.
Still Uneasy? There's Always Foreign Voluntary Workers' Comp
While global pandemics generally capture the headlines, most litigation involves auto accidents or on-the-job injuries at foreign sites. So for employers with consistently high levels of risk because of unavoidable employee travel, there are insurance plans that help offset potential adversity.
These are known as foreign voluntary workers' compensation policies, typically accompanied by a business travel accident policy. The policies are not ironclad protections for employers, but do give the employer the added protection of the workers' compensation laws. This at the very least provides a well-defined schedule of benefits to the employee, rather than the open-ended damages that might be assessed against an employer in a personal injury jury trial.
Mile of Prevention
As with so many topics in health and safety, prevention is key. According to a GBTA news release, Shelly Lewchuk, past Chair of the NBTA Travel & Meetings Risk Management Committee repeated this assertion for those responsible for employee travel when she said that "the business case for implementing duty of care standards falls in line with the basic tenet of risk management theory: the cost of prevention is cheaper than the cost of dealing with incidents."
Going the proverbial last mile for traveling employees will mean adequate preparation before they head to the airport — as well as a portfolio of in-country contingency plans. And that extends well beyond malaria pills and proper vaccinations.
