The shocking news of recent airline disasters brings into sharp focus for employers the sometimes unforeseeable risks facing employees who frequently travel for work.
In today's world, the ability to dispatch the right employee from wherever they are, to where an employer needs them to be, has never been more common.
Whether that employee is working on the ground or simply flying over a dangerous area (as a result of either armed conflict or natural disaster), the employee is still performing functions and duties away from their normal workplace. Different legal risks can arise in these circumstances, and it is important for an employer to properly assess the resulting risk exposure.
Many employers already observe common risk minimisation techniques that require them to consider factors including: can the work be completed remotely rather than in person; has advice from a security consultant as to travel planning procedures been procured (e.g. are armoured vehicles, body guards, secure compound accommodation required); are government travel warnings monitored and followed (e.g., by the U.S. Department of State); and does the cost of the business to be completed by a traveling employee eclipse the risk.
However, there are fundamental employment law questions that should be kept in mind when assessing that risk exposure.
1. What laws apply to the traveling employee?
Most employees will today have contracts that contain governing or operative law provisions. However, employers should not be quick to assume that the laws of that stated jurisdiction will automatically apply to a travelling employee or to the exclusion of any laws which apply in the jurisdiction in which the employee will be working. Governing law clauses may not prevail when a conflict of laws test is applied. Additionally, in some circumstances, the labour laws of an employee's home country, for example, may have extraterritorial application and extend far beyond even a local region.
The nature of any assignment abroad will also affect which laws will apply. An employee expatriated for a longer term will invariably require a different assessment than a business traveller or an employee on short-term assignment.
It is important for employers to clearly understand which legal jurisdiction will take precedent, and which laws will apply to an employee whose employment involves them traveling across international borders.
2. What obligations under relevant laws will apply to an employer?
All employers invariably owe a duty of care to a traveling employee. The extent to which that duty can be discharged with a high level action plan, or a particularly granular procedure, will differ significantly depending on the jurisdiction, but any such duty will normally extend beyond the employee's normal physical workplace.
In most jurisdictions, the origin of duty of care obligations can be found in statute (for example, work health and safety laws or labour codes), and in precedent/common law (such as personal injury torts, which is generally country specific).
In some jurisdictions, failure to ensure or observe statutory and other legal requirements could result in serious civil and even criminal liability for an employer and relevant officers and employees. In countries like Australia, France and Russia, for example, an individual employee of an employer can face significant jail time for serious breaches of workplace health and safety laws.
3. Is the risk indemnified or subject to compensation cap?
Insurance policies covering the traveling of an employee, or an incident occurring on the ground, will generally be activated only when the cause of incident can be established, and that cause is in fact insured against. Acts of war or civil disobedience are almost always excluded.
An employer should be aware of what applicable insurance policies they have in place, what policies could be activated when a disaster strikes, and the scope of any coverage in those circumstances. A feature for some senior level employees, for example, is a provision for additional insurance to be taken out as a remuneration component.
Additionally, in some jurisdictions, such as the US, personal injury lawsuits are in all but very limited circumstances barred by relevant workers compensation schemes for injuries that occur on home soil. However, for injuries occurring abroad, particularly where the assignment is longer term (in the US: generally longer than one month), any bar or cap to personal injury compensation may not apply.
4. Can the risk be excluded?
Some employers have sought to include particular exclusion clauses that require an employee to relinquish or extinguish any duty owed to them by the employer, such as assumption of risk agreements. In many jurisdictions, any such exclusion could be ignored or overturned by a court or tribunal. An employer directing an employee to perform an international task should consider carefully the wording of any exclusion clauses or assumption of risk agreements to assess the strengths of whether it would be upheld by the laws and courts of whichever jurisdiction will likely to apply to that employee should an incident occur.
5. What practical steps can an employer take?
Employers who have either local operations or employees who travel to jurisdictions that may be dangerous, either through the potential for armed conflict or civil unrest, or as a result of the risk of natural disasters, should carefully consider the need to implement an emergency response policy.
An emergency response policy should consider a range of potential scenarios, from the need to evacuate some or all employees or to temporarily close one or more employer facilities, through to the need to change working arrangements as to an employee's work location, changing work hours, or requiring employees to take periods of leave.
Any policy will also need to cover other business issues to ensure business continuity, manage disaster recovery, or deal with any supply shortages or failures to external critical infrastructure. This can be achieved by establishing a committee or by identifying core managers who are provided appropriate training and who are trained on the policy's operation, and who will be tasked with managing the employer's business activities during the period of any disaster.
Allied to the implementation of an emergency response policy, employers should consider introducing an international travel policy requiring employees to notify their employer when they are travelling internationally, both for business purposes and also for non-business reasons when travelling into jurisdictions which are considered to be in the high risk category or which are subject to government travel warnings. Only by an employer knowing the whereabouts of its travelling employees will the employer be in a position to quickly respond to a disaster scenario, to take appropriate steps to communicate with its employees, and if necessary, to provide assistance to its employees and their families.