Canadian Employment Law Today

CANADIAN EMPLOYMENT LAW TODAY Published by Canadian HR Reporter, a Thomson Reuters business 2014 3 Employee travel risk management: Are you ready for takeoff? Employers can't ignore risks associated with employees on the road | BY RYAN TRELEAVEN | EMPLOYERS OWE their employees a gen- eral duty of care to take reasonable steps to keep them safe in the workplace. But, what is an employer's duty and how is it fulfi lled when an employee is required to leave the confi nes of her workspace and travel — be it down the street, across the country or around the world? The truth is, whether on a trip to North Korea or across town, there is risk associated with travel that cannot be ignored by employers. So, how can an employer identify and minimize the risks associated with business travel? Designing, implementing and consis- tently applying a travel risk manage- ment policy (TRMP) tailored to the par- ticular workplace can go a long way. Sources of employer liability Criminal charges: Since Bill C-45 was passed by the federal government in 2004, an organization and its senior of- fi cers can be held criminally liable for their acts or omissions as they relate to occupational health and safety. Section 217.1 of the Criminal Code of Canada provides: "Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task." The potential consequences of con- viction under the Criminal Code are extreme, including life imprisonment for individuals and unlimited fi nes for corporations. As well, the Ontario Court of Appeal has accepted the concept of "corporate capital punishment" by en- dorsing fi nes that could, in appropriate circumstances, force an offending com- pany into bankruptcy. Fortunately, the Criminal Code only applies to conduct representing a marked and substantial departure from that of a reasonably pru- dent employer. Charges are therefore reserved for morally blameworthy con- duct that amounts to a wanton and reck- less disregard for the lives and safety of employees. OHS legislation: In Ontario, for example, the Occupational Health and Safety Act (OHSA) defi nes workplace as "any land, premises, location or thing at, upon, in or near which a worker works." In other words, as a worker travels so too does the workplace, as well as the employer's duty to keep that workplace safe and free of violence, harassment or bullying. In R. v. Reliable Wood Shavings Inc., an employee who was required to trav- el to various locations in Ontario was killed when he interacted with a piece of equipment known by his employer to be faulty. Justice Peter Bourque if the Ontario Court of Justice, in making a fi nding against the employer, reiterated that an employer has a duty to not send an em- ployee into a dangerous situation. "I can think of no reason why, in the context of the aims and objectives of the OHSA, that an employer, with full knowledge (as was here) of an inher- ently dangerous and continuing situa- tion … should not as part of his duty under this legislation, refuse to send his workers into such a situation," said the court. In contrast to offences under the Crimi- nal Code, under the OHSA the intentions of the employer are not relevant, and the threshold for a violation is much lower. An employer in Ontario will be found to have violated the OHSA if it fails to meet a "reasonable employer" standard. The corollary is that an employer can escape OHSA liability through a "due diligence" defence — by demonstrating it took "all reasonable precautions" to protect the employee. Civil action: An employee injured in the workplace may be entitled to work- ers' compensation — for example, the Workplace Safety and Insurance Board (WSIB) in Ontario — in which case the employee is barred from bringing a le- gal action against the employer. This includes an employee injured while on business travel outside Ontario and in- ternationally for up to six months (or as extended by the WSIB). If an employ- ee is injured in the course of business travel at a time when its employer is not registered and in good standing with the WSIB, the employee may bring a civil action against her employer. Foreign law: An employee travelling internationally is subject to the laws of the land in which the employee is travel- ling. For example, the United Kingdom's Corporate Manslaughter and Corporate Homicide Act provides that an employer may be held criminally and fi nancially liable for a failure to provide for the security and safety of its travelling em- ployee. Given the prominence of London as a business centre and transportation hub for air travel throughout Europe and much of the world, the U.K. act is po- tentially applicable to a vast number of employers. Avoiding liability – travel risk management policy Now that we've identifi ed the poten- tial sources of liability, what can an employer do to manage this risk? One important step is the implementation of a comprehensive workplace travel risk management policy (TRMP), tailored to the specifi c workplace. An effective TRMP should address at least three core principles: Proactive assessment of risk: A com- mon mistake employers make is be- lieving their group insurance plan or employee assistance program (EAP) suffi ciently addresses business travel needs. However, these programs are only engaged after an incident. An effec- tive policy should be proactive in man- aging the risks posed by business travel, and include the following components: • Information package/briefi ng — Em- ployees should be provided with an in- formation package before they depart, including: a detailed itinerary; contin- gency plan in the case of emergency; and information regarding specifi c risks applicable to the destination or travel route. For employees travelling within Ontario or Canada, relevant information may include: the location and contact information of approved lodging loca- tions; updated weather reports and road conditions; and any unique features of the area, particularly if the employee will be travelling through remote regions without dependable mobile service. International travel gives rise to ad- ditional considerations, including: the current political and weather climate, the location and contact information of "friendly" consulates and embassies; a summary of unusual or noteworthy lo- cal laws or cultural/regional norms; and information relevant to obtaining timely medical attention in the case of an emer- Continued on page 7

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