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At Home in the World: Ensuring the Safety of Your Global Workforce

O ne summer day, my chief financial officer calls to ask a favor; he is inviting Kelvin, a talented accountant from our Singaporean affiliate, to consider a position at our US regional headquarters. He wonders if I can take some time to talk to Kelvin about my experience in relocating from the United States to Singapore and back to the United States again, and specifically to share with Kelvin what I think might be helpful for him to know in terms of any potential relocation to the United States.

Upon meeting Kelvin, I ask a few questions about his previous international work experience and I discover that he has previously worked in both Beijing and Jakarta for another group affiliate but that his family did not join him for either of these prior international assignments. Also, no one in his family has ever visited the United States before. Among other things, he is concerned about finding safe and suitable housing, a good school, and a trusted family physician.

[Related: Q&A with the EiC: Managing Global Risks with Amazon GC David Zapolsky]

As regional general counsel of a global and multinational organization that focuses on medical and travel security assistance services, of which has an ever-expanding globally mobile workforce, I am overtly conscious of my company’s duty of care obligations. We strive to actively display, implement, and maintain the highest standards when discharging this duty and ensuring that our employees are fully engaged, prepared, and advised well in advance of any proposed international relocation.

When considering any international relocation of an employee, we, as an organization, focus on two of the main issues affecting and concerning the welfare of this employee: their health and their safety — both in equal measure and importance. Finding suitably qualified candidates who are willing and able to relocate is difficult at the best of times, so any adverse experience for a relocating employee could have detrimental consequences, internally and externally. In a worst-case scenario, failing to adequately and properly address the needs of an employee and/or their family in advance could result in a possible civil action for negligence on the grounds that the employer has failed to discharge its employers’ duty of care.

US employers and their “duty of care”

US employers generally avoid civil actions by employees injured in the scope of employment, as such claims are typically resolved under a workers’ compensation insurance program. All US employers are required by law to have valid workers’ compensation insurance coverage in place, which provides compensation for medical benefits and wage replacement on a “no-fault” and “exclusive remedy” basis for injuries arising out of and in the course and scope of employment, which precludes an employee from bringing a civil action against an employer for injuries or illnesses. Workers’ compensation laws vary from state to state, with most states either requiring workers’ compensation insurance or providing a state insurance fund into which an employer must make contributions.

However, US courts are increasingly holding employers to a common law duty of care derived from negligence law, which can be summarized as an employer’s obligation to act in a prudent and cautious manner to avoid the risk of reasonably foreseeable injury to its employees.2 Whereas injuries occurring during a commute to and from work are generally excluded from workers’ compensation (otherwise known as the “coming and going” rule), employees who must travel as part of their core job duties can assert and bring these injuries into the scope of workers’ compensation. Furthermore, a claim for injuries arising from relocation abroad may be brought as a common law negligence claim.

Finding suitably qualified candidates who are willing and able to relocate is difficult at the best of times, so any adverse experience for a relocating employee could have detrimental consequences, internally and externally.

In Khan v Parsons Global Services Ltd, the plaintiff was kidnapped, tortured, and held for ransom for over two weeks while on a business trip in Manila. Asma Azhar Khan had accepted a posting as an accountant in Manila for the Washington, DC based company under a US based employment agreement.

Four days after arriving in Manila, Khan was kidnapped on his way back to his hotel. Among other allegations, Khan and his wife filed a suit against Parsons, alleging claims of negligence and intentional infliction of emotional distress in Parsons’ handling of the incident. Parsons’ defenses included asserting that workers’ compensation was the exclusive remedy for Khan. The DC Court of Appeal reversed the motion for summary judgment granted to Parsons, ruling that Khan’s injuries were not, in fact, compensable only under workers’ compensation “because he was hired to work at a fixed job site for a period of years.”

[Related: Airbus GC John Harrison on the Advancing Position of General Counsel in a Global Corporate Setting]

In Enlow v Union Texas Petroleum (Enlow)1, a team of four long‐time Houston based auditors were killed in Karachi, Pakistan, while on an overseas assignment for the company. An action was brought in the US Federal Court, Fifth Circuit (Houston) by survivors of the four employees, alleging that the company breached its common law duty of care by sending the auditors to Pakistan during a politically volatile time. Union Texas prevailed as the jury found that the company’s preparation was adequate in that it had employed a private security risk management firm and that the murder of these auditors was not reasonably foreseeable. Reputational risks can also exceed the litigation risk. The tragic circumstances in Enlow also resulted in a New York Times article; fortunately for Union Texas, its handling of the case was portrayed in a positive and sympathetic light.

There are a number of things an organization can do to manage and mitigate its liability risk to overseas workers before an incident occurs:

1. Assess

Assessing health risks in advance
An employee like Kelvin (and his family) can be compared to Khan and his wife in that they are potentially relocating to the United States, and not merely “coming and going” to work. If they are unprepared for navigating the health care system in the United States, which differs significantly from that of Singapore, it is reasonably foreseeable that they might exacerbate a pre-existing health condition through this relocation. Assessing whether an employee who relocates has any pre-existing health conditions that may compromise the assignment is a key and critical consideration and will involve engaging in a pre-deployment medical screening process to evaluate any potential health risks. In the event an employee’s (or a family member’s) health condition needs to be accommodated, both parties can then take measures to address and monitor any medical condition, which might otherwise compromise the relocation itself.

Assessing safety risks in advance
An employee may be totally unfamiliar with their new job location and one of their primary concerns will be how to find a safe and suitable place to reside temporarily and, hopefully, permanently. Coming from a relatively safe city like Singapore, where it is common to see unaccompanied children on public transportation, a pre-deployment security briefing will be a valuable resource in helping an employee like Kelvin to avoid reasonably foreseeable risks.

With an adequate pre-deployment briefing, and should an employee face an adverse security incident, the employer would have a strong and defensible argument that it has taken adequate measures to avoid reasonably foreseeable harm to the employee. In addition, the employee has a duty to take reasonable care for his own health and safety in the event of an incident, and an intervening criminal act would likely be deemed an unforeseeable intervening cause. However, the failure to provide even a basic security briefing could, under a sympathetic set of facts, be viewed as unreasonable.

2. Inform

In lieu of simply handing a huge packet of forms to an employee complete during on-boarding, an international transferee will need someone from the employer who can thoroughly explain the entirety of the employee’s relocation. The employee’s concerns will likely differ from US nationals in that they are hearing US medical insurance terms such as “open enrollment,” “claims administrators,” “co-pays,” and the various implications of choosing HMOs/PPOs for the first time.

In lieu of simply handing a huge packet of forms to an employee complete during on-boarding, an international transferee will need someone from the employer who can thoroughly explain the entirety of the employee’s relocation.

In a medical emergency, employees need quick access to advice and referral services to help them choose appropriate healthcare providers; rather than a mystifying pile of documents to read through. Managing emergent issues in the complex US health care environment are a whole new ballgame that international transferees need help to understand. As an organization, we provide our employees with access to our network of 24/7 Assistance Centers, 365 days per year, so that they can obtain such advice and referrals quickly in an emergency.

3. Help

In the event of a security related incident or serious medical condition that brings an abrupt end to an international assignment, the employee and their family may need to be evacuated or repatriated back to their country of origin. While business travel and accident insurance might cover such costs, and repatriation benefits may be guaranteed by the employment offer, from a practical standpoint it is unlikely that the employer’s internal travel manager is equipped to handle a medical or security evacuation, which is a highly specialized form of travel logistics. Employees need assistance from experts who can execute on the various detailed parts of an evacuation or repatriation. Through our network of Assistance Centers, we are able provide 24/7 access, year-round, to specialized advice in coordinating emergency evacuation and repatriations.

[Related: Asking Aliya: Managing the Globe]

Attracting and retaining talent in a mobile workforce is a frequent and growing necessity in today’s global business environment. Whether it’s a short trip or long-term assignment, interruptions to business continuity can negatively impact your company’s profit. As in-house counsel, we face the challenge of helping our organizations navigate their duty of care obligations. We need to plan for and mitigate foreseeable risks to the health and safety of an evolving population of globally mobile workers. Ensuring that your organization is prepared to assess, inform and help its employees, who travel or relocate internationally, will go a long way to balancing the risks that such mobility can pose to your organization.

SOURCES
1 Enlow v Union Texas, (1999) unreported.

About the Authors

Dan AbelaDan Abela is regional general counsel responsible for the International SOS EEMEA region. He is a UK common law qualified and practicing lawyer, who is based in the UAE, with over 17 years of combined private practice and in-house experience, both locally and internationally.

Shireen Advani LeeShireen Advani Lee is regional general counsel responsible for the International SOS Americas region. She is a California licensed attorney, who is based in the San Francisco Bay Area, with over 18 years of corporate and government in-house experience in California, New Jersey and Singapore.


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