Employers can’t ignore risks associated with employees on the road
Employers owe their employees a general duty of care to take reasonable steps to keep them safe in the workplace.
But, what is an employer’s duty and how is it fulfilled when an employee is required to leave the confines of her workspace and travel — be it down the street, across the country or around the world? The truth is, whether on a trip to North Korea or across town, there is risk associated with travel that cannot be ignored by employers. So, how can an employer identify and minimize the risks associated with business travel?
Designing, implementing and consistently applying a travel risk management policy (TRMP) tailored to the particular workplace can go a long way.
Sources of employer liability
Criminal charges: Since Bill C-45 was passed by the federal government in 2004, an organization and its senior officers can be held criminally liable for their acts or omissions as they relate to occupational health and safety. Section 217.1 of the Criminal Code of Canada provides:
“Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.”
The potential consequences of conviction under the Criminal Code are extreme, including life imprisonment for individuals and unlimited fines for corporations. As well, the Ontario Court of Appeal has accepted the concept of “corporate capital punishment” by endorsing fines that could, in appropriate circumstances, force an offending company into bankruptcy. Fortunately, the Criminal Code only applies to conduct representing a marked and substantial departure from that of a reasonably prudent employer. Charges are therefore reserved for morally blameworthy conduct that amounts to a wanton and reckless disregard for the lives and safety of employees.
OHS legislation: In Ontario, for example, the Occupational Health and Safety Act (OHSA) defines workplace as “any land, premises, location or thing at, upon, in or near which a worker works.”
In other words, as a worker travels so too does the workplace, as well as the employer’s duty to keep that workplace safe and free of violence, harassment or bullying.
In R. v. Reliable Wood Shavings Inc., an employee who was required to travel to various locations in Ontario was killed when he interacted with a piece of equipment known by his employer to be faulty.
Justice Peter Bourque if the Ontario Court of Justice, in making a finding against the employer, reiterated that an employer has a duty to not send an employee into a dangerous situation.
“I can think of no reason why, in the context of the aims and objectives of the OHSA, that an employer, with full knowledge (as was here) of an inherently dangerous and continuing situation … should not as part of his duty under this legislation, refuse to send his workers into such a situation,” said the court.
In contrast to offences under the Criminal Code, under the OHSA the intentions of the employer are not relevant, and the threshold for a violation is much lower. An employer in Ontario will be found to have violated the OHSA if it fails to meet a “reasonable employer” standard. The corollary is that an employer can escape OHSA liability through a “due diligence” defence — by demonstrating it took “all reasonable precautions” to protect the employee.
Civil action: An employee injured in the workplace may be entitled to workers’ compensation — for example, the Workplace Safety and Insurance Board (WSIB) in Ontario — in which case the employee is barred from bringing a legal action against the employer. This includes an employee injured while on business travel outside Ontario and internationally for up to six months (or as extended by the WSIB). If an employee is injured in the course of business travel at a time when its employer is not registered and in good standing with the WSIB, the employee may bring a civil action against her employer.
Foreign law: An employee travelling internationally is subject to the laws of the land in which the employee is travelling. For example, the United Kingdom’s Corporate Manslaughter and Corporate Homicide Act provides that an employer may be held criminally and financially liable for a failure to provide for the security and safety of its travelling employee. Given the prominence of London as a business centre and transportation hub for air travel throughout Europe and much of the world, the U.K. act is potentially applicable to a vast number of employers.
Avoiding liability – travel risk management policy
Now that we’ve identified the potential sources of liability, what can an employer do to manage this risk? One important step is the implementation of a comprehensive workplace travel risk management policy (TRMP), tailored to the specific workplace. An effective TRMP should address at least three core principles:
Proactive assessment of risk: A common mistake employers make is believing their group insurance plan or employee assistance program (EAP) sufficiently addresses business travel needs. However, these programs are only engaged after an incident. An effective policy should be proactive in managing the risks posed by business travel, and include the following components:
• Information package/briefing — Employees should be provided with an information package before they depart, including: a detailed itinerary; contingency plan in the case of emergency; and information regarding specific risks applicable to the destination or travel route. For employees travelling within Ontario or Canada, relevant information may include: the location and contact information of approved lodging locations; updated weather reports and road conditions; and any unique features of the area, particularly if the employee will be travelling through remote regions without dependable mobile service.
International travel gives rise to additional considerations, including: the current political and weather climate, the location and contact information of “friendly” consulates and embassies; a summary of unusual or noteworthy local laws or cultural/regional norms; and information relevant to obtaining timely medical attention in the case of an emergency.
Some useful resources include: the Canadian Centre for Occupational Health and Safety (www.ccohs.ca); the Government of Canada Travel Advisories directory (www.travel.gc.ca/travelling/advisories); and the Government of Canada embassy and consulate directory (http://travel.gc.ca/assistance/embassies).
• Check-in protocol/employee tracking — Regardless of where an employee may be travelling, it is important the employer know her location at all times. Depending on the situation, the appropriate protocol could be as simple as sending an email upon arrival, up to and including GPS tracking on employees and equipment.
• Technology assessment — Consider what technology or other safety equipment is necessary. Smartphones and tablets are not merely convenient business tools — they can be crucial safety devices. At a minimum there should be confirmation these devices will have service wherever the employee is travelling. If not, consider a contingency communication plan.
An interdisciplinary TRMP team: There is a temptation to view travel risk management as a human resources issue. While your HR department will be heavily involved, a comprehensive TRMP may require active participation from various players or departments including, for example, managers (who may be responsible for check-in protocols), IT (to ensure mobile technology is available), and finance (to ensure sufficient funding is in place).
A written policy, applied and enforced consistently: As in the case of any workplace policy, to be of maximum benefit a TRMP should be written, clearly communicated and consistently enforced. It should also include a feedback component so that it can be improved on an on-going basis. An employee should sign an acknowledgment confirming her understanding of the policy prior to departure, including that a violation of the policy may result in discipline, up to and including termination.
Risk to employees associated with workplace travel is real and tangible. Fortunately, it can be managed with the strategic use of a TRMP tailored to the workplace. A TRMP will not only help to protect employees from a range of travel risks, but also serve as an invaluable tool if your organization is ever called upon to demonstrate that appropriate, protective steps were taken.
For more information see:
• R. v. Reliable Wood Shavings Inc., 2013 CarswellOnt 13260 (Ont. C.J.).
Ryan Treleaven is a lawyer with Sherrard Kuzz LLP, a management-side employment and labour law firm in Toronto. He can be reached at (416) 603-0700 or visit www.sherrardkuzz.com for more information.
