Doing your duty

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ITIJ 193, February 2017

The legal obligation to safeguard others from harm underpins duty of care legislation, and for employers sending their staff overseas, it is imperative that their international health and travel insurance policies have appropriate benefits for the employee, as well as language that protects the employer from dubious duty of care claims. Mandy Langfield spoke to experts around the world about this complex issue.

As the world becomes smaller and more employees become globally mobile, staff are increasingly being sent to parts of the world where it is more challenging to keep them safe and healthy. With political, social and economic volatility in many areas of the world, sending an employee abroad has rarely been a riskier business. Iram Ganju, president of IKG Global Consultants, which specialises in corporate relocation and cross-border preparedness consulting, told ITIJ that with globalisation turning more national companies into international corporations, it is time for them to start developing a duty of care culture: “Having a robust preparedness plan in effect for the global employee is a must now more than ever. Cross-border travellers often find themselves in unfamiliar environments or situations they are not prepared to handle.” Awareness of duty of care responsibilities is lower than it should be, said Ganju, who successfully ran the first ever Duty of Care Conference in October last year in the US. 
John Kaye, managing director of Cigna Global Health Benefits Europe (CGHB), believes that most companies are in fact aware of their duty of care responsibilities, while also underestimating their complexities. “The company is required to consider each case specifically, looking at the needs and characteristics of every individual in the context of the location they’re going to,” he told ITIJ. “Fulfilling their duty of care requires employers to research their employees’ needs, plan properly and prepare for every eventuality. Simply depending on an insurance policy isn’t enough – we advise clients to start working with employees well before the departure date to make sure they’re ready for any specific challenges they’ll face.”

Most companies are in fact aware of their duty of care responsibilities, while also underestimating their complexities

Sound advice
Preparation, then, is essential, but companies need to be wary of their information sources. For example, a spokesman from Collinson Group, a provider of travel insurance and assistance solutions to the UK market, welcomed the recent announcement from the UK Foreign and Commonwealth Office (FCO) of more information on its travel advice website about terrorist attacks and the likelihood of them occurring. However, he warned against companies using the FCO’s guidance to make duty of care decisions. A statement from the company continued: “While for many insurers FCO guidance is a trigger for coverage, companies should recognise it will not necessarily be politically independent or tailored to the nuances of those who need to conduct business in potentially dangerous places where independent and non-prescriptive advice can have much more value.” 
Worryingly, Collinson’s own research found that the FCO travel advice websites are used by six in 10 companies seeking to complete risk assessments for globally mobile employees, and the company warned: “Even with enhanced guidance on terrorist threats, using just this tool for risk assessments is inadequate and could see companies not legally compliant with duty of care obligations. It is a serious issue, [as] when it comes to briefing employees pre-travel, under half of HR professionals at large corporates say they ensure employees are issued with company guidelines with regards to safety and security when travelling on business, reducing to 40 per cent for small and medium-sized enterprises (SMEs).”
Emmanuel Légeron, CEO of EA’s Global Corporate Solutions, said in a company newsletter: “Pre-deployment preparation is becoming the most vital part of any comprehensive duty of care programme. As revealed at the 2013 Federation of European Risk Management Associations (FERMA) conference Forum, organisations with business travellers are dedicating 80 per cent of their risk management resources to the preparation stages, or to put it in terms of duty of care, the pre-deployment elements, of business travel.”
ITIJ spoke to Suzanne Garber, former chief network officer for International SOS and co-founder of Gauze, which provides a global database of public, private and military hospitals around the world, regarding how companies can demonstrate duty of care before and during travel. “I use the 3E approach,” she explained. “Engage, Educate, Enforce. Engage your employees and teams responsible – this can include the employee, the line manager, travel desk, HR, risk department, senior executives, vendors and even the employee’s family. Educate them on what are the rights, responsibilities and even the risks and rewards to business etiquette.” Finally, she said, there has to be some enforcement of what has been discussed that involves holding the employee accountable if their actions do not follow protocol: “Duty of care is not just a one-way street from the employer’s point of view; duty of loyalty must be exhibited in conjunction by the employee.” 
According to Dr Tim Hammond, chief medical officer for global assistance provider CEGA, ‘medical and security risk mitigation for employees abroad is becoming increasingly intertwined’. “Employers today want one-stop access to information that covers everything from the availability of overseas medical care, to the likelihood of disease, civil unrest, piracy or terrorism, before employees set off abroad,” he told ITIJ. “They want employees to be trained to cope in hostile environments, and (once abroad), they want them tracked and supported with integrated medical and security risk alerts and emergency solutions.”
Addressing the challenge of how to ensure staff members have access to the information and resources they need, Randall Gordon-Duff, head of product, corporate travel, for Collinson Group, said: “We work closely with our clients to understand the profile of their travellers and travel patterns to ensure that there is an appropriate response to the ‘what ifs’ that fit their company’s culture, as well as their risk appetite. It’s about understanding the trends and listening to what today’s business travellers are saying, and looking at how methods of communication are evolving to ensure that their needs continue to be met.”

Pre-deployment preparation is becoming the most vital part of any comprehensive duty of care programme

Risk reality
Terrorist activity was identified by Gordon-Duff as being a more serious risk in countries previously considered to be safe, such as France, Belgium and Germany – but having said that, he pointed out that travel managers and business travellers should remember that ‘the chance of being directly caught up in a serious incident remains extremely low’. Lower impact events such as robberies, traffic accidents and food poisoning occur with higher frequency and continue to be the most common risks posed; although, he added: “It is worth highlighting that one of the defining trends of 2016 was the rise, globally, of social and civil unrest. If corporates do not focus on their duty of care responsibilities for business travellers, there are real risks that staff could be exposed to the fallout of civil unrest.”
Suzanne Garber also discussed the main risks faced by employees heading abroad, and although she mentioned in passing the obvious risks of bombings, delayed flights, and illness, she was keen to point out that the risks differ depending on what age the traveller is. “Younger people,” she said, “may encounter more situations due to risky behaviours (drinking, recreational drugs, wanton sex and STDs), whereas older adults experience chronic conditions like high blood pressure, diabetes and heart disease.” One of the top risks, according to Suzanne, is illicit drug use, despite the fact that organisations wouldn’t necessarily register this as a problem. “Think about it,” she said. “Most employees – particularly millennials who don’t want their employers to know much about them – will not use services provided by their company, preferring to instead self-pay for rehab services.”

Duty of care is not just a one-way street from the employer’s point of view; duty of loyalty must be exhibited in conjunction by the employee

Dick Atkins, legal counsel for International Recoveries LLC in the US, also pointed out that there is a higher incidence of legal problems for young people travelling or studying abroad. He said: “Legal assistance is critically important for participants in study abroad programmes as well as for organised youth travel and cultural and work abroad programmes. Schools and sponsoring organisations have a particular responsibility to provide health, safety and security protection for this vulnerable young population.”
Risk mitigation strategies vary, with most of the experts ITIJ spoke to agreeing that pre-travel preparation is the most crucial aspect. Sometimes, however, no amount of preparation can guarantee a person’s safety, as Kaye of Cigna pointed out: “There will be times when your best risk mitigation strategy is to not send someone to a particular destination. Employers have to be realistic – if you’re not confident you can protect some or all of your staff in a particular destination, your duty of care is not to send them.”
 
Global insurance provision
In a fast-changing risk environment, simple insurance is no longer always enough to adequately protect staff in the event of a crisis, said Gordon-Duff, pointing out that many off-the-shelf business travel policies may not have suitable cover that enables responses to extreme circumstances. “We are witnessing a new trend,” he explained, “where many insurance companies are increasingly working with assistance providers to provide a solution that extends cover and response for their clients to ensure their products are fit for duty of care.”
Clements Worldwide is a provider of international health and travel insurance to organisations with employees all over the world, ranging from international schools, government staff, the United Nations and non-governmental organisations. Smita Bhargava, vice-president of special programmes and risks, spoke to ITIJ about the variations in duty of care responsibilities, pointing out that different industries and locations will each require specific kinds of coverage. “For instance,” she said, “the duty of care package needs to be increased when the employee is in a high-risk country in Africa or the Middle East. The policy will have emergency evacuation coverage and war and hazard insurance. Furthermore, an employer is often duty-bound by contract to protect an employee’s salary if they were to be evacuated, so cover is needed for such expenses.” The most common basic coverage that ensures an employer meets their duty of care obligations are workers’ compensation, liability, medical and life insurance, kidnap and ransom and personal accident.
Kaye of CGHB pointed out that the cover available has to provide people with the support that is appropriate for their destination: “That might be very specialist in certain high-risk areas and less so elsewhere, but it’s crucial that your people know what support is available and how to access it.”
If corporates do not focus on their duty of care responsibilities for business travellers, there are real risks that staff could be exposed to the fallout of civil unrest
Duty of care laws exist in various forms in England, Australia and the US, and while regional variations mean that not all cases that would be successful in one jurisdiction would be held up in another, the principle of duty of care is now well known and upheld in law courts across the world. Legal obligations surrounding an employer’s duty of care vary according to country and even state law, thus the policies that protect them also vary – while the benefits may be similar, said Clements’ Bhargava, the structure of the policy may differ. For US employers, workers’ compensation is a must-have, whereas in the UK a similar benefit would fall under employers’ liability cover. In the US, high medical cover limits mean that if an employee is evacuated and needs treatment ‘back home’, the cover continues uninterrupted and with minimal co-payments from the insured. Whereas for British employees who are evacuated to UK soil, such a benefit isn’t necessary due to the National Health Service being free at the point of care. International organisations’ approaches to local national employees are also different, Bhargava pointed out, with American employers having a tendency to offer similar cover to that for their American employees, whereas a UK company is more likely to seek local insurance provision for local workers.
Suzanne Garber of Gauze said that when it comes to comprehensively insuring business travellers, transparency is the name of the game. “This includes having candid and thorough conversations between insurance broker and client,” she explained. “There is a myriad of options available to corporations in terms of insurance products, [so] the choice can be daunting. Having brokers ask the right questions can lead to the most streamlined and appropriate products for that client.”
Working with experts seems to be an emerging theme, allowing companies to make sure they are buying the right policy that genuinely meets the needs of their employees. If an assistance company isn’t an expert in security assistance, for instance, then engaging with a specialist is a sensible option to make sure the needs of the client are being met. Gordon-Duff said: “Many companies are now working to build both qualitative and quantitative risk management into their travel risk policies. Those that haven’t engaged a corporate travel risk partner previously are considering potential partnerships in order to fulfill the needs of their travel risk management.” A specific area he identified as growing in popularity with corporate clients is the provision of information portals, tracking and risk alerts to ensure that foreseeable risks can be mitigated up front, and assistance can be delivered in an efficient manner.
Dick Atkins is of the opinion that an employer’s duty of care includes providing access to competent legal services abroad as a benefit within their corporate travel policy. “In recognition of this duty,” he told ITIJ, “employers and insurers have begun to address the question of how best to implement a global legal referral system. This is an issue of concern for insurers not only for their own interests, but because they may need to provide guidance to employers and help assess the adequacy of legal benefits and assistance programmes in place.” 
In order to make legal assistance benefits effective, Atkins said they should include pre-travel health advice, warnings about special or unusual laws in the destination, cover that can be transferred across borders in case the insured goes on a local trip, and a 24/7 hotline that can give the client a direct referral to a local lawyer who specialises in the area of law in which help is needed. “Preferably,” he continued, “the referral lawyer will speak the same language as the covered person, can quickly assess the legal issues at hand and be familiar with the requirements of the local system. Otherwise, the employee is likely to be left in a very dangerous situation.” Vetting the qualifications of the referred lawyers is essential, as ‘an informed, critical selection process is much more likely to result in meeting the specific legal needs of the covered person and satisfy duty of care standards’, said Atkins, concluding: “While it may not have yet been specifically mandated by law as a part of duty of care standards, a credible legal hotline can be helpful in extricating covered persons from a wide variety of legal problems which they may encounter all over the world. It makes pre-eminent good sense to be prepared and at the same time to provide a low-cost useful benefit for this essential component of the business world.”

The duty of care package needs to be increased when the employee is in a high-risk country

In conclusion
Despite the seemingly onerous obligations placed on employers as a result of duty of care legislation, Iram Ganju pointed out that duty of care needn’t necessarily be seen as a burden, saying that benefits can follow: “If companies adopt a duty of care culture into their organisations, the counter effect is a duty of loyalty environment.”
Smita Bhargava also pointed out that by having in place comprehensive insurance policies that give good benefits that meet or exceed an employer’s duty of care responsibilities, this can be a great recruitment tool. 
“Keeping employees healthy, safe and secure is not only the smart thing to do for business,” concluded Suzanne Garber, “it’s the right thing to do.