This article originally appeared in the July 2018 edition
of Mobility Magazine.
hot topic for mobility conference sessions and webinars, much has been written
over the last few years about the “duty of care” that companies owe their
employees during international business travel. In most instances, we talk
about this “duty of care” in vague generalities without really much of a clear
idea of what that duty looks like.
companies have a vested interest in keeping their valued employees safe,
healthy, and productive during international assignments. Further, I would
argue—and I believe most companies would agree—that they have a moral and
ethical imperative to protect their employees from harm when asking them to
travel abroad to further the company’s mission.
this duty more than just a good business practice and a moral and ethical
imperative? Is a company legally obligated for its employees’ well-being when
they are halfway around the globe from their home workplace? Is a court really
going to hold a company legally and financially responsible for an injury
occurring thousands of miles away in a country with different laws, culture,
norms, politics, infrastructure, and environment—where anticipating every risk
and contingency is difficult if not impossible?
In a strictly
legal sense, the concept of duty of care is a construct of common tort law.
Simply put: If Person A has a duty to care for the well-being of—or at least
not to harm—Person B, and Person A fails to act accordingly, Person A is
negligent and thus liable for any resulting injury to Person B.
and their employees, courts and regulatory agencies in most jurisdictions have
long held that a company has a duty to provide a “reasonably safe workplace”
for its employees.
an employee’s “workplace” might be commercial flights and airports across Asia,
oil fields in the Congo, factories in China, technology labs in India, ranches
in Brazil, and all points of travel and accommodation in between—a company’s
duty of care to its employees to provide a reasonably safe workplace takes on a
whole new level of complexity.
fundamental questions of “What is the employee’s workplace?” and “What is
‘reasonably safe?’” are beyond complex.
what constitutes an employee’s “workplace” is most often simply a function of
time and place. Determining the workplace of a financial analyst who works from
8 a.m. to 5 p.m. for a financial services firm at its offices in One World
Trade Center in New York is relatively straightforward.
But what if
her company sends her on a two-week business trip to visit a client in Hong
Kong? The answer to the question becomes hazy. Is the employee “at work” only
once she arrives at the client’s office in Hong Kong, or is she “at work” as
soon as she gets into the taxi headed to the airport in New York? Is she “at
work” only while in the office in Hong Kong, or also while at dinner, in her
hotel, or sightseeing and taking a harbor cruise on her Sunday off?
In most cases,
courts around the world apply the simple logic that but for the employee’s
foreign assignment, she would not have been in the foreign destination at all.
company can potentially be liable for any injuries that occur at any place and at
any time while in, or traveling to and from, the foreign destination. Simply
put, the company can be liable for the employee’s well-being from the time she
leaves her home office until she returns.
considered “reasonably safe” is likewise problematic when it comes to
international travel. You don’t even have to consider elevated risks from armed
conflicts, terrorist attacks, natural disasters, or criminal activity to know
that the definition of “reasonably safe” varies greatly around the world.
considered unsafe in a factory in Stuttgart may be commonplace in a factory in
Bangkok. A major health risk in Toronto in January is seasonal influenza, while
residents of Freetown or Monrovia worry about Ebola. Public protests in
center-city London most times involve public permits and placards, but similar
protests in Johannesburg or Manila may end in tear gas and bullets.
as mundane as daily transportation is categorically different from country to
country. While 57 percent of taxi passengers in New York wisely choose to use
their seatbelts, just try to find a seatbelt in a rickshaw in Mumbai.
In most cases,
courts are going to take a somewhat case-by-case approach to what is reasonably
safe based on the circumstances, and bright-line definitions are hard to come
by. But companies should be prepared that courts are not likely to view a
French employee visiting their factory in São Paulo in the same way as their
local Brazilian employees in that same factory.
of what is reasonably safe in the employee’s home country is likely to
influence a court’s reasoning—even for an injury occurring in a foreign
country. So to the extent that many inherent risks of international travel
cannot be avoided, companies are at least obligated to prepare and warn
employees who are unaccustomed to such risks in their home countries.
Read the rest
of this article in the July 2018 edition of Mobility Magazine.