In the past few years, however, the tide is shifting to a more proactive outlook. With news of Ebola, the earthquake in Nepal, and other disasters, risk managers are taking notice of disruptions, and wondering how to prevent their employees from being among the next set of victims. This mindset imparts an additional benefit, as companies strive to change their corporate culture to truly embody a Duty of Care mentality.
In most cases, Duty of Care implies that an employer is legally liable if an employee travels for business and needs any kind of intervention or assistance. That said, Duty of Care is not a blanket policy and must be adapted to fit the particular needs of organizations that have diverse functions and missions.
In the event of a critical incident, what is your legal responsibility? To what extent are you held legally accountable? For both risk managers and C-Suite executives, the answers to these questions will most likely determine the direction of their Duty of Care policy.
Legal Framework
“Organizations already know they have an ethical and fiduciary responsibility to uphold Duty of Care to their employees,” states Robert L. Quigley, MD, D.Phil., regional medical director and senior vice president of medical assistance, Americas Region, at International SOS in Philadelphia, PA. “However, the legal responsibility cannot be ignored.”
According to a 2009 paper by International SOS, “Several Western countries have developed legislation and derivative case laws that reflect employers’ expanded Duty of Care responsibilities, and courts are increasingly favoring employees.” A recent acceleration in lawsuits has had an adverse impact on companies’ reputation and branding. As more lawsuits ensue, the collective workforce is sure to be affected.
Although the concept of Duty of Care has always existed just by sheer virtue of the contractual relationship between employers and employees, defining Duty of Care policies and procedures can be daunting for organizations entering this arena for the first time.
In previous years, Duty of Care was an issue primarily taken up by non-governmental organizations and international aid groups that maintained operations in austere or high risk environments. However, that has evolved. According to a 2011 paper by the Security Management Initiative, “the ‘humanitarian enterprise’ is no longer a matter of well-intended philanthropy or charity but must be considered a global multi-billion dollar ‘business’.” Accordingly, their Duty of Care policies have changed, with an increased focus on risk management.
“The past five to six years have seen an increase in litigation against NGOs and aid organizations,” notes Joe Davis, senior associate at DLA Piper in Reston, VA. “In part this is due to the changing nature of individuals attracted to work in this space as it has grown. Twenty or thirty years ago, many aid volunteers and employees saw it as their calling, and accepted that if something bad happened to them, that was part of the risk they undertook. Now, individuals are more likely to work in the NGO world for a year or two and then move on. These danger tourists have less appreciation for the inherent risks of the job, and are more willing to sue when things goes awry than those who have been part of this community for decades,” he explains.
Today, different countries around the world practice Duty of Care in varying ways. For example, Australia has approached the Ebola threat with stringent legislation, warning companies in the energy, mining and infrastructure industries that they would be held liable if they did not take measures to mitigate risks. In the US, violations of Duty of Care have not found their way into the US criminal code – and remain in the civil suit arena.
That said, companies with employees in foreign lands could possibly receive a double whammy by neglecting Duty of Care. For example, if Company X in China violated local occupational laws there, those deemed responsible could face imprisonment and/or fines in China, and face additional fines and punitive damages under a civil suit in the US.
Solving the Problem
Whether you have business travelers or expats, the key to successful Duty of Care policies is to train and educate your employees so they comply with policy. Then, employees can uphold their “duty of loyalty” which demands that they maintain good behavior during the course of business travel.
So, although employees have to do their part, “when they see that an employer is really trying to create policies that will protect the traveler, it boosts overall morale and productivity,” Quigley says. “There are three pillars that carry equal weight in creating a healthy workforce – and those are a strong ethos, corporate social responsibility and Duty of Care,” he explains.
“Carrying insurance policies is not a panacea and will not prevent you from being sued,” Davis says. “Organizations must ask how have we met our burden?” Davis has identified four components that can help organizations navigate the Duty of Care stratosphere:
RESEARCH: An employer should gather the latest intelligence regarding risks. If it doesn’t have this information, it should reach out to governmental and private organizations that research and provide such resources.
WARN: Imparting this intelligence to employees is the next step. By advising employees about risk, employees can make a reasonable determination about accepting an assignment. In the end, this voluntary determination protects both the employer and employee and places the employer in a stronger legal position should an incident occur.
TRAIN: Simply put, providing risk waivers is not enough. Training should be robust and cut across the full spectrum of risks – security, safety, mental health, communications and response. Training should inform employees of risks and how to avoid them.
DOCUMENT: Employers may be less likely to be held liable for an incident if they have strong Duty of Care policies in place. But it is critical to document the steps your organization has taken to enforce these polices. Without such documentation, it will be more difficult to establish that you met your burden.
Hindsight Is Foresight
“What we see now more and more, is that companies are incorporating ‘lessons learned’ from global incidents into their policies; in other words, current world crises continue to act as wakeup call, triggering companies to respond and come up with innovative solutions,” Quigley says. For example, many organizations are integrating more response mechanisms into their preparedness plans, including the provision of assistance companies.
These wake up calls shouldn’t be forgotten, Quigley warns. “During the H1N1 epidemic, everyone was buying pandemic plans. Unfortunately these were shelved after the crisis passed. When Ebola came along, many companies didn’t know what to do because their pandemic plan was never practiced or used. Whether you purchase an Ebola or measles pandemic plan, it should be incorporated into Business Continuity plans,” he adds.
Moreover, “companies are increasingly re-designing their safety and security policies to be more thoughtful in their efforts to educate employees on Duty of Care,” says Davis. Today, risk management is more than just avoiding financial loss – prevention far outweighs the costs of employee injury or death, litigation, or loss of corporate reputation.
“Although we still live in a largely reactive society, we see organizations are increasingly more alert, and are able to anticipate foreseeable risks and plan accordingly,” explains Quigley. Moreover, the fact that education is being used as a compliance tool may be the saving grace that will push organizations into creating a more proactive risk mitigation approach.
