‘The workplace does not stop at the borders’: lawyer explains employer’s duty of care after kidnapping, deaths in Mexico
The recent kidnapping and killing of employees working for a Vancouver-headquartered mining corporation in Mexico’s Sinaloa state has put a harsh spotlight on safety and protection for employees in dangerous locations.
Ten mining workers were kidnapped late last month from a project site in Concordia, Mexico, five of whom were later found dead in what local media reports said was a “mass grave”. In its most recent public statement dated Feb. 12 and posted from Vancouver, Vizsla Silver confirmed that “five colleagues remain unaccounted for,” in addition to the five deceased.
CBC reporting has described escalating cartel and military violence in the area surrounding the “Panuco” project in the municipality of Concordia – one report detailed gunfire within earshot of a gated compound where workers slept, in a territory a source said was “full of armed people”. CBC also reported accounts of hostile drones flying over active worksites and workers going through armed checkpoints.
OHS obligations and workers’ compensation
For Aaron Zaltzman, employment lawyer with Toronto firm Whitten and Lublin, the question of what employers are responsible for when sending employees to risky locations is simple: “All of it.” Basically, the same legal framework that applies in a local warehouse, office or construction site still shapes what is expected of employers when work happens abroad, no matter how far.
“The workplace does not stop at the borders,” Zaltzman says, explaining that Canadian occupational health and safety statutes are drafted around the concept of “workplace,” not geography: “The workplace is assumed to be wherever the work is, and if that workplace travels, then so do those obligations.”
If the employer directs work from Canada, the obligation to take reasonable precautions is still in play, and that includes reporting mechanisms, he says: “Just like occupational health and safety obligations don't stop at the border, workplace safety insurance doesn't stop the border, either.”
Risk assessments must come before the plane ticket
In Sinaloa, where Vizsla Silver has operated since 2019, local reports have described an 18-month escalating civil war between rival factions of an organized crime cartel. An expert who had been in the area told CBC that the kidnapping was likely a show of strength by a cartel faction, “to send the message that they're not out of the picture in that part of Sinaloa.”
"These people have connections to a Canadian company,” said the expert, an analyst from the International Crisis Group. “And this area is very strategic because of the minerals and also the logging industry.”
For Zaltzman, the starting point for any employer contemplating an overseas assignment is a structured, explicit risk assessment, that must capture “what specific and broad dangers are your workers going to face that they would otherwise not be facing in Canada.”
He notes that Canadian law already expects worker input into health and safety through joint committees and he reminds employers that frontline perspectives can help identify risks and practical safeguards that a head office may overlook; procedures that are arrived at through collaboration rather than top-down decree will make more sense and be more effective.
“If your workers are on the ground doing drilling for a gas pipe, and we're worried about terrorist threats, I don't think it would be reasonable or wise to give all of your workers firearms,” he says.
“But certainly having them know exactly what the procedures would be if they come under some kind of threat, who to contact, how to contact them if they need to go anywhere, where are those places, how are they getting there, putting them in touch with the right people, making sure that all lines of communication are going to stay open – those are some pretty standard things.”
Monitoring and the importance of communication
Once risks are mapped, Zaltzman says the next question is how employers will stay ahead of them in real time and how to stay connected to employees on the ground during emergencies ranging from environmental events to violence.
“Sound methods of communication” is one of the most powerful tools employers have, and it is often where HR can have the most direct influence, Zaltzman says.
“Obviously, working cell phones at a minimum, but backup lines of communication as well, and having those communications be monitored on the other side at all times, because those risks and those dangers can happen at any time,” he says.
“If your communication is based on direct messaging or calling, or … any kind of tele-communications, that's not going to do any good if no one gets that message until the morning.”
For employers, that means thinking about redundancy, such as satellite phones, secure apps, and clear call trees, as well as staffing; someone in Canada must be responsible for monitoring those channels around the clock when risk is elevated, not just during business hours.
He also sees periodic, mandatory check-ins as part of that system in high-risk areas, that could look like scheduled “all clear” messages, location sharing or agreed check-in times that automatically escalate if missed: “If you don't receive that message, you have to assume that something is not okay and you have to take appropriate action.”
The system should also include formal monitoring of news, security reports and local conditions, as well as practical, reliable mechanisms for workers to flag problems quickly – and for employers to respond.
When to evacuate: contingency planning
Leadership can build trigger response points for some events, such as weather alerts or political unrest, but as Zaltzman points out, they also need flexible authority to act when threats emerge suddenly. That could mean pausing travel, relocating employees or shutting down operations, even at significant cost.
Zaltzman says that is where concrete contingency plans, up to and including evacuation, come in.
“Obviously, the biggest contingency plan is, are you going to evacuate your workers at a certain point? And what is your plan for that? Are you going to be able to keep track of them? Are you going to be able to actually extract them from whatever situation they find themselves in?” he says.
“Working with the local government, fixers, if you are dealing with a company on the ground working with the people in place, that is going to be the ideal. But you may not always have that option.”
For its part, Vizsla Silver has stated its commitment to continuing work in the area, and that work on the Panuco project continues, with suspended site operations.
“Much of the near-term advancement of the Panuco project is engineering-based and can be conducted remotely, and that work is progressing as Vizsla Silver advances toward its key milestones,” an online statement reads.
“The company remains committed to responsibly developing the Panuco district over the long term and maintaining its investment in the community of Concordia.”
