There’s No Vaccine for Negligence: Duty of Care

As the global pandemic unfolds and employees are planning to return to work and travel, keeping them safe is more important than ever.  Companies are adapting to the new reality of Duty of Care during a pandemic and many are finding it difficult to navigate these waters.

In the United States alone, over 2,400 lawsuits have been brought against employers for COVID-19 related negligence. [1]    The need to establish a Duty of Care towards employees is paramount to ensure a safe and stable work environment. For example, in April of 2020, a man died after being exposed to the novel coronavirus after he was forced to return to work without proper safety measures in place. His employer had even circulated an article for employees entitled “Coronavirus Risks: Fact vs. Fiction” in which they stated “If you are healthy, a mask will not protect you from the respiratory drops an infected person coughs out. Open areas of the mask can let those drops in.” His company was in violation of OSHA, and this wasn’t the only incident in which one of their employees have been impacted by their negligence during the pandemic.

While legislation varies greatly around the world, case law in many countries continues to refine Duty of Care obligations.  A solid Duty of Care framework acts as an incentive for employee retention and loyalty in the workplace.  It is the obligation of companies to establish a level of responsibility that protects the safety and wellbeing of their staff.  Below are a few examples of international regulatory requirements focused on Duty of Care.

                UK: An employer can be found in breach of Duty of Care through both criminal and civil actions. Civil actions are rooted in the Health and Safety at Work Act of 1974 (“HSW Act”) and pursuing actions under the common law Duty of Care. Criminal law legislation includes the Corporate Manslaughter and Corporate Homicide Act of 2007 (the “Manslaughter Act”).

                Belgium: the “Arbeidsongevallenwet” (work accidents law) of 1971 holds employers responsible for work accidents during work, and to and from work. The prevention of work accidents is one of the major elements of overall employer responsibility for managing employee wellbeing. The risks that employees may encounter on the job must be identified and eliminated to the extent possible. This happens through risk management analysis and taking resulting preventive measures. For specific work situations, such as working at dangerous heights and depths, special preventive measures must be taken by the employer.

                Germany: The Duty of Care duties of the employer and employee cannot be waived in advance by either party. The employer must also have an interest in the health of the employee when he/she is working abroad. From a Social Security perspective, a provision of the Social Security Act, Book V, provides for direct liability of the employer, and not the state medical insurance, in certain circumstances. For sickness related costs incurred abroad in countries with which Germany has not concluded a totalization agreement (i.e. a bilateral or multilateral Social Security treaty), the employer is liable. In the case of international assignees, the employer’s Duty of Care may extend to the interests of the employee’s immediate family members; at least in cases where the employer provided assistance to family members as well. The employer will be bound to ensure the correctness and adequacy of the assistance provided. The liability for sickness-related costs under Social Security, also extends to family members who visit the assigned employee in countries outside of Germany.

                Spain: The Labor Risk Prevention Law is the primary Spanish legislation that emphasizes the employers’ Duty of Care through special risk assessment and training measures. The penal code provides criminal penalties for a breach of the Labor Risk Prevention Law. Workers´ statutes define jurisdiction using conflicts of law principles for Spanish citizens working abroad. The law on the judiciary also sets out rules regarding jurisdiction in employment contract disputes. Spanish case law extends the rights to workers on a mission abroad, but restricts it to injuries sustained at work.

With the pandemic acting as a catalyst to reaffirm a company’s Duty of Care framework, organizations need to review and update their existing insurance and risk management policies and protocols.  Policies should be clear, structured, robust, and agile and must understand that ignoring Duty of Care will have a financial impact to the organization.  Business travel insurance claims relating to the pandemic are costly.  A recent claim for an individual travelling from Hong Kong to the United States who required extensive medical care after contracting COVID-19 exceeded $500,000.

As organizations adopt the new ‘norms’ associated with returning to work and business travel, the most important concern for a company should be the safety, security, and wellbeing of their employees.  Implementing strong workforce Duty of Care policies and protocols are crucial for an organization to mitigate risk and keep their workforce safe.

[1] “The First Wave of Covid-19 Workplace Lawsuits Is Here.” Advisory Board, August 3, 2020, www.advisory.com/en/daily-briefing/2020/08/03/covid-lawsuits