Employee International Travel: It’s Never ‘Duty-Free’

This article originally appeared in the July 2018 edition of Mobility Magazine.

Does a company have a legal duty of care for its employees traveling internationally?

A perennial 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.

Obviously, 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.

However, is 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?

Legal ‘Duty of Care’

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.

For companies 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.

However, when 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.

The seemingly fundamental questions of “What is the employee’s workplace?” and “What is ‘reasonably safe?’” are beyond complex.

What Is the ‘Workplace’?

Determining 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.

Therefore, the 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.

What Is ‘Reasonably Safe’?

What is 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. 

What is 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.

Even something 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.

The standard 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.

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