Duty of care and sending employees abroad: How much do organizations need to care?

May 17, 2011 John Proctor Corporate Immigration, Health and Safety

More and more organizations are asking the question: “What are the responsibilities associated with managing a travelling workforce?” This question has been increasingly relevant as of late, with a number of Canadian companies taking notice of the recent events in Egypt, Libya, and Japan.

In Canada, a “reasonable standard of duty of care” was established in the Canadian Criminal Code in 2004. In simplified terms, it institutes a legal duty for all persons “directing the work of others” to take reasonable steps to ensure the safety of workers and the public.

In 2009 the Canadian Department of Justice examined the legal requirement to provide training for employees travelling to high risk destinations. The summary of that review found that:

Employers should take reasonable steps to warn employees of the risks
Liability exists if the risk to the worker is increased by the omission of something the organization should have done
Liability can be triggered by failure to provide or make available the appropriate training required to detect, avoid or survive situations

These findings were not surprising, and are in sync with most of the existing provincial health and safety regulations, which provides that organizations must:

Conduct risk assessments
Warn employees of risks
Train employees to avoid risks
Train employees to deal with incidents
Have a health and safety management plan to cope with incidents

In other words, organizations should extend their health and safety system to employees who conduct business travel.

The question then becomes: “What are reasonable steps?” Allowing employees to book their own travel to high risk destinations, without having been provided any training or education should not be an option. This is especially true when travel warnings are freely available on the DFAIT website , as well as on several other sites.

The “reasonable steps” will depend on the results of a risk analysis for international travellers, which will take a number of factors into account. A simplified travel risk analysis template can be found here.

Oftentimes an assumption is made that if employees are only travelling within North America, safety is not a concern. There are, however, very dangerous areas in North American cities, and reasonable steps still need to be taken. If the business trips are in Mexico, the Caribbean, Africa, India, etc., then the reasonable steps will be quite different. Warning and training is a sensible first measure, but organizations also need to consider management plans and the other reasonable pieces of the puzzle.

Organizations sometimes think “won’t this type of training and information scare my employees?” The answer is no. All organizations test their fire alarms, and have fire drills to practice what to do in case of an emergency. Employees may grumble and groan, but they complete this training because it is an organizational requirement. Once employees understand the issue, they generally recognize that their employer is looking out for them. Employees often end up putting to use the exact training and information they have received in their personal lives and other scenarios.

The legal concepts of duty of care and of due diligence often overlap. The Canadian Centre for Occupational Health and Safety (CCOHS) has a webpage on due diligence which contains a useful definition. I often recommend to my clients that they review this definition, while thinking of their employees who travel.

If you can “prove that all precautions, reasonable under the circumstances, were taken to protect the health and safety of workers” then you have most likely achieved a reasonable standard of duty of care.

John Procter
Human Risk Solutions

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John Proctor

CD CISM Vice-President at Global Cyber Security

John Proctor is one of the leading experts in human risk and travel risk management in Canada and is recognized internationally in this capacity. He has been responsible for the development of all of the federal captivity survival programs currently in use in Canada today and has helped several other countries with their own systems. Read more

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