Duty of Care: Opportunity for EAPs - Journal of Employee Assistance Vol. 48 no. 1 - 1st Quarter 2018
By Ken Burgess, M.Ed., LPC; and Nancy Board, MSW
What is Duty of Care (DOC) and how does it relate to changing expatriate assignments? Why is this an important topic for employee assistance professionals? How can they take advantage of this opportunity? For one thing, the locations of expat assignments are changing. In the past, Paris, London, Geneva, and other choice locations hosted significant numbers of expats. Some are still assigned to cities like these, but more remote and challenging locations like Al-Khobar, Saudi Arabia; Ulaanbaatar, Mongolia; and Luanda, Angola have become common. In addition to being challenging in terms of culture for Americans, many of these countries are also dangerous due to terrorism and other factors. That is where Duty of Care (DOC) comes in to play, and why it is so important.
Duty of Care Overview
DOC is the responsibility an employer has to keep its employees, contractors, and others, safe and free from any foreseeable harm while on the worksite, or while working anyplace else on behalf of the organization. (OSHA, Section 5A-1). For home-based employees working at a company work location, DOC responsibilities apply to “working hours” only; for expatriates and business travelers, though, such responsibility continues 24/7. This is because expatriates and business travelers, whether employees or contractors, are in effect working for the company every hour they are away from home.
As noted, in the US such regulations are tied closely to Occupational Safety and Health Administration (OSHA) procedures. In other countries, such as the UK, Canada, France, Belgium, the Netherlands, Germany, Spain, Australia, and New Zealand, specific DOC laws are on the books, such as the Corporate Manslaughter and Corporate Homicide Act in the UK.
Many US companies fail to adequately prepare their expats and families – 22 percent of firms surveyed by SHRM stated that employers “did virtually nothing” to prepare their employees to live overseas (Mauer, 2013).
It’s true that it’s difficult for any organization associated with expatriate assignments to provide all of the tools necessary for expatriate, family, and business traveler success. However, ignorance of these concerns is not an adequate defense for non-compliance, and US employers doing business in other countries need to improve their DOC policies.
Despite the positive effect that preparation and support have on expatriate success and productivity, some (perhaps many) US companies appear to be waiting to see what happens – in other words, if lawsuits actually arise. They have in the UK and other parts of Europe. Conversely, in the UK, DOC violators can, and are, sentenced to prison. (Editor’s note: See sidebar on page 22 for case examples.)
How the US Lags Behind in DOC
Cigna and National Foreign Trade Council’s Global Mobility Trends Survey included responses from nearly 3,000 expats from more than 100 companies in 156 countries (Cigna and NFTC, 2015). The survey found that:
* Three-fourth of respondents said their employer provided help moving household goods, setting up utilities, and other “settling-in” needs (including medical), but they needed much more training and support as related to local culture and lifestyle.
* Participants also expressed the need for an expat “Sherpa guide” – an experienced mentor with strong familiarity with the assignment area; someone who’s “been there, done that” and can credibly offer useful guidance based on this experience.
When an employer makes a decision to do business offshore, its DOC responsibilities (according to current HR practice literature) includes the completion of thorough due diligence in order to best determine the risks to the safety, security, and health of those to be sent on its behalf. The employers’ actions to mitigate those risks includes, but is not limited to:
1. Documented evaluation of the location where business is to be conducted:
A comprehensive travel plan must be written and communicated to everyone involved in the expatriate assignment, including employees and their families. This plan takes the location assessment into consideration and provides services to mitigate the risks, including a way to always know where employees are, how to reach them in the event of an emergency, their responsibilities in accordance with the plan, and contracted services to provide emergency evacuation. Employers must be prepared to support employees or withdraw them from events such as political violence, terrorist acts, or natural disasters. A kidnap and ransom policy for assignees is also recommended.
2. Health issues and concerns:
Documentation of health issues and concerns need to be included in the travel plan. This includes employee orientation to assure that assignees understand their responsibilities. Risk mitigation includes emergency medical evacuation for all assignees.
3. Degree of difficulty anticipated in doing business in the host country:
This includes socioeconomic conditions, language needs, and cultural and business etiquette and expectations.
These examples represent the minimum, not the maximum needed to meet employer DOC responsibilities today (FIDI, 2017). Employers can be deemed to have breached their DOC responsibilities by failing to do everything that was reasonable to keep the employee, contractor, or family member safe from harm.
How the EAP can Get Involved
EA professionals are well aligned to assist organizations in positively contributing to the well-being of an assignee or business traveler. It doesn’t matter whether you’re providing internal or external services to the company, your expertise as an EA professional is worthy of notice. It begins with understanding what types of businesses you are supporting. First, do your homework.
* How well do you know the business practices of the customer organizations you serve?
* Are employees traveling domestically, internationally or both?
* If the latter, what countries/locations are employees traveling to or where are they assigned?
* How long are their assignments?
* What challenges do these locations pose from a risk standpoint?
* Are there policies in place related to Duty of Care?
* Are there safety procedures in place that cover overseas travel and assignments?
* Are these safety sensitive jobs?
* Are there particular cultural dynamics that need to be assessed?
Find out as much as you can about what physical and emotional safety protocols are in place to support traveling employees. Then assess the gaps and recommend solutions in partnership with the HR/Safety/Risk Management team. EAP should be a regular resource for all employees, pre, post and during assignments.
As an EA professional, you may ask, “How do I get a seat at the table?” It helps to have an established relationship with the HR and Safety team in order to be recognized as a viable resource. But either way – ask. Most HR teams would love to have additional expertise in reviewing procedures and protocols. They may not think to ask you…so be pro-active and ask first.
Some additional questions to consider when evaluating DOC practices:
* Who is providing pre-travel/pre-destination cultural sensitivity training, host country destination services, and post-assignee support?
* Is an emotional/psychological assessment conducted?
* Is EAP support a standard offering for business overseas travelers and expat assignees?
* What vendors are in place to assist employees during a crisis or major disaster?
* Is there a medical evacuation contract in place?
* Is psychological first-aid assessment built in?
* Is there a Critical Incident Stress Management (CISM) protocol in place?
* If so, which countries have psychological counseling assistance available with credible practitioners?
* Where and how are families notified if crisis strikes? By whom?
* How are families in the home country receiving care and support? What about the host country?
* How is public relations handled in emergencies?
Don’t assume all HR professionals have the answers to these questions; but ask. Be willing to start the conversation. Be seen as a value-added resource to the organizations you serve.
Finally, recommend that anyone who is going on extended business travel and / or is being assigned to another country be evaluated by EAP as a normal part of the assignment process. The earlier EAP is engaged, the better. Know what resources will be available for the employee and their family and help them make the necessary linkages. Helping organizations minimize reputational damage with comprehensive, clear protocols and procedures helps everyone. The EAP is in perfect position to assist in offering DOC services.
Ken Burgess is a relationship-focused international behavioral health professional with more than 25 years’ experience. Ken has helped to develop and implement programming in more than 100 countries. He can be reached at email@example.com.
Nancy Board is co-founder of Global Women 4 Wellbeing (GW4W), a 501© (3) not-for-profit organization dedicated to helping support more women to become healthy leaders for a more sustainable world. She developed a network of CI and EA professionals in over 40 countries and received certification as a global professional in human resources. You can reach her at firstname.lastname@example.org.
Cigna and National Foreign Trade Council’s Global Mobility Trends Survey Results. (2015, November). New York, NY: Author. Retrieved from https://www.cigna.com/newsroom/news-releases/2015/cigna-and-national-foreign-trade-council-global-mobility-trends-survey-results.
Claus, L. (2011). Duty of Care and Travel Risk Management Global Benchmarking Study. London: AEA International Pte. Ltd. Retrieved from https://www.internationalsos.com/duty-of-care.
FIDI Global Alliance. (2017, March 20). Expat duty of care: How to stay compliant. Brussels, Belgium: Author. Retrieved from https://www.fidi.org/blog/expat-duty-of-care-compliancy
Mauer, R. (2013, July 8). Survey: Companies fail to train managers for overseas assignments. Society for Human Resource Management (SHRM). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/global-hr/pages/fail-train-managers-overseas-assignments.aspx.
Society for Human Resource Management (2017, May 1). Managing international assignments. Washington, DC: Author.
Case Examples: Legal Actions Resulting from DOC Negligence
As explained in the main article, too few US companies adequately prepare their employees for international assignments. Meanwhile, the rest of the Western world continues to add emotional and behavioral health requirements to Duty of Care. In 2007, the United Kingdom passed the Corporate Manslaughter and Corporate Homicide Act. The law imposes criminal liability on corporations where there is a gross breach of Duty of Care resulting in the death of a person, such as employee, person on a work site, or business traveler.
There have been fewer than 25 convictions since the law was implemented, but three of them occurred in 2017. In one case, two companies were fined in connection with the death of a worker who fell through the roof of a warehouse after he stepped onto a skylight in 2015. Odzil Investments Ltd owned the warehouse and was aware that the roof needed repairs. The work was carried out by Koseoglu Metalworks, which admitted to charges of corporate manslaughter, while Odzil and two of its directors were found guilty following a four-week trial. (Napley, 2017).
In addition to the 2017 convictions, in the 2012 case of Lion Steel, a last-minute guilty plea by the company to the corporate manslaughter charge was agreed as part of a deal to remove the risk that one of the directors might face prison if convicted of manslaughter. Without the Act, it is unlikely that Lion Steel would have been prosecuted for corporate manslaughter (Grimes, 2013).
Other related actions include:
* The employees of a French company working in Pakistan were killed by a suicide bomber. The company was found liable for failure to provide adequate security measures for their employees. A contractor was injured on a worksite in Germany and sued in the UK. The court ruled that the contractor was an employee of the UK company and that the employer failed to provide a safe working environment (Lockton Companies, 2015).
* In Australia, the spouse of an employee on assignment was severely injured in a fall on a staircase at housing provided by the employer. Damages were awarded to the spouse against the employer (Lockton Companies, 2015).
* British Petroleum (BP) was sued in the UK by families of employees killed during an Algeria gas plant terrorist attack in 2013 (Oil Industry News).
Grimes, J. (2013, April 12). People Management. Corporate manslaughter cases increase. Retrieved from http://www2.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2013/04/12/rise-in-corporate-manslaughter-cases.aspx.
Lockton Companies (2015, July). Duty of care: Protecting traveling employees. Retrieved from http://www.lockton.com/whitepapers/Duty_of_Care.pdf.
Napley, K. (2017, May 31). Three companies convicted of corporate manslaughter in a week. [Blog post]. Retrieved from https://www.lexology.com/library/detail.aspx?g=2bc3bff1-090c-4ee0-98b6-b99d423426f7.
Oil Industry News (2016, January). Families of BP employees suing over 2013 Algerian gas plant attack. Retrieved from https://www.oilandgaspeople.com/news/6813/families-of-bp-employees-suing-over-2013-algerian-gas-plant-attack/.