In parts one and two of this series, we painted with broad strokes the stories of unfortunate complications that occurred to three employees expatriated on assignment and examined the question of whether their insurance coverage was adequate and legally compliant. Continuing to probe this subject, in this column we’ll discuss whether employers owe their employees a duty of care when they’re traveling abroad for work or expatriated on an assignment.

The short answer to that question is “yes.” Based on applicable statutory requirements and case-law mandates, employers have a moral and legal obligation to ensure the health, safety, and security of their employees when traveling on business or expatriated on assignment.  

In the U.S.: the Occupational Safety and Health Administration Act (1970), as well as State Workers’ Compensation laws impose a duty of care on employers to provide a safe work environment for employees and provide compensation to employees for work-related injuries. Some State Workers’ Compensation laws also apply to international business travel (e.g. New York and Texas).

See also: Five companies that dropped part-time employee health care

In addition, under U.S. common law, employers must take steps to prevent or mitigate “reasonably foreseeable” hazards, which may present harm to employees. If employers fail to do so, they risk liability for negligence and may be in breach of the duty of care.

In the U.K.: the Health and Safety at Work Act (1974) and the Management of Health and Safety at Work Regulations (1999) set forth the responsibilities that employers have towards employees and the actions employers are required to take to manage health and safety at work. In addition, under the Corporate Manslaughter and Corporate Homicide Act (2007), employers can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of duty of care.

In Canada: the Canada Labour Code (1985) imposes a duty of care on employers to ensure employees have a reasonably safe work environment and extends duty of care obligations to employees who are working away from the employment workplace, whether or not the work site is under the direct control of the employer.

In addition, amendments to the Criminal Code (2004) impose a legal duty on employers to take reasonable steps to prevent bodily harm to employees and, to the extent employers breach such obligations, employers may be subject to criminal liability.

In Australia: State Occupational Health and Safety and Workers’ Compensation laws impose a duty of care on employers to ensure the health, safety and welfare of employees at work and provide compensation to employees for work-related injuries.

In France: the French Labor Code (1910) imposes a duty of care on all employers to provide a safe work environment for employees and also explicitly applies to employees when traveling or working oversees. In addition, employers that fail to comply with health and safety rules that result in employee death or bodily harm may be held criminally liable.

In seeking to avoid these very major pitfalls, benefit managers should plan long-enough in advance and review all existing insurance policies. Follow these steps:

Legal/Compliance: Ask specific questions to your insurer, broker, etc.:

  • Is coverage compliant with applicable laws?
  • Is cross-border insurance (from the U.S.) permitted or is a local policy required?
  • Are there distinctions between travel insurance versus core-medical insurance?
  • Are there any immigration requirements tied to insurance?
  • Are claim payments permissible in-country?
  • Are there any currency restrictions?
  • Is there evacuation coverage? Medical only or medical and security?
  •  If there is evacuation coverage, what triggers an evacuation event? What are the restrictions of coverage?
  • Are there any privacy forms required for employer intervention in employee claim items, including evacuations?

Commercial Questions:

  • What is the provider network area?
  • Will payments be made directly to the provider in local currency?
  • What percentage of claim payments are made directly to providers?
  • What is the provider vetting (credentialing) criteria?
  •  Does your insurer offer country-guide information covering risks, prescription drug limitations, etc.?

Action Items:

  • Review your existing policies to determine if there is war zone coverage. Is terrorism excluded? Civil unrest? Other hostile events?
  • Consider purchasing a travel tracking program – allows you to have real-time information as to the whereabouts of all of your employee business travelers.
  • Ask your insurer to send your employees country-guide information highlighting prescription drug restrictions, specific country risks and culturally accepted norms.

In today’s global economy, the success of a relationship, product, and/or project launch can hinge on the success of face-to-face business meetings or international assignments. Your discipline in advance planning and readiness to tackle the foreseeable risks and threats that may arise in relation to the health, safety and well-being of your business travelers and expatriates is critical.
Experienced professionals understand the value in proactively identifying potential risks, proper planning in advance and strategic partnerships with global insurers that have the expertise in the key regulatory and compliance environments where your employees are today and where they will be in the future.

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