COVID-19 And Business Travel Duty Of Care

The pandemic has changed the future of work-related travel

Does the pandemic change a company’s duty of care responsibilities? Will it drive increased employee awareness and questions about their employer’s duty of care preparedness? The coronavirus pandemic has changed the future of work-related travel. Experts, employers, and workers are looking at the duty of care through a different lens as they plan and prepare to return to domestic and international business trips. 

Duty of care generally requires that every employer provide employment that is generally safe for their employees by providing reasonable safeguards to protect their life, health, and safety. 

The courts have ruled that companies, including travel operators, governments, and educational institutions, have a duty of care to protect their travelers from unreasonable risk of harm. Business travelers, study-abroad students, NGO and government travelers are vulnerable to medical, accident, natural disaster, and security risks on every continent, including the risk of infection from CV19. Failing to meet your duty of care requirements could mean disaster for your firm, and its brand standing.

Cases regarding overseas injuries and illnesses of employees can result in substantial economic and reputational harm to a corporation. The family of Hung M. Duong, a Lucent Technologies/AT&T employee, filed a duty of care lawsuit following his death subsequent to a surgical procedure in Saudi Arabia. The court upheld claims that Lucent breached their duty of care when they provided a substandard response, inadequate access to medical evacuation, and incorrect information regarding the processing of his passport. Failure to protect their employee with a reasonable safety net resulted in substantial legal costs, an undisclosed settlement, and damage to the company’s reputation. 

Colleges, universities, and even high schools are at risk, too. When a traveler is a minor or a student, there may be a special duty of care, which some courts might require to be of the highest level. In Cara Munn, et al., v. the Hotchkiss School, a federal court awarded $41.5 million to a student who contracted encephalitis due to a tick bite while on a school-sponsored trip to China. The jury found the school breached its duty of care by failing to inform parents and students of the risk of insect-borne diseases, failing to provide protective measures and failing to respond appropriately. 

You may think the probability of a traveler being subjected to such an experience is low. The opposite is true. Sixty-five percent of travelers to the developing world report a medical problem during their trip, according to the 2019 International Travel Health Guide. The U.S. State Department Bureau of Consular Affairs reports more than 9,000 U.S. citizens suffered fatalities from non-natural causes during the latest recorded 10-year span, or nearly 1,000 per year. 

Another common assumption is that workers’ compensation insurance covers work-related travel. This is not always the case. Some types of workers are not covered under workers’ compensation law. Depending upon a company’s policy, independent contractors, volunteers, executive officers, and even owners may not be covered. 

As the CV19 pandemic evolves, work-related travel will re-emerge and with it there will be significantly more attention paid to the duty of care preparations in place at companies and organizations. C-suite executives, senior management teams, HR professionals, union leaders, government agencies, and employees will all be examining the rigor of their current duty of care capabilities. Comprehensive duty of care programs need to include: 
 

In most cases, organizations lack the knowledge, experience, and staff to fulfill their duty of care responsibilities, so obtaining support from travel risk experts, medical and security specialists, evacuation providers, and outside travel legal counsel is essential.  

It is equally important that an organization’s leadership learn the travel laws, regulations, standards, and prevailing practices that are relevant to the organization, type of traveler, activities, and destinations. Doing so can insulate the organization from multi-million-dollar judgments, significant harm to the organization’s reputation and brand, and even criminal charges in some jurisdictions.