Travel Risk

Duty of Care in a Perilous Age

As risks grow globally, companies must increase focus on the perils that may face their employees abroad.
By: | June 1, 2017 • 6 min read

Political risk and terrorism are on the rise, and so is the responsibility of all companies and organizations to make sure that their most treasured asset, their employees, are safe when they travel.

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Risk consultants and insurers warn that now more than ever employers must make their best efforts to guarantee the physical and mental integrity of staff members and their dependents in foreign jurisdictions. Failing to do so can result in litigation in the U.S. and other countries alike, not to mention the potential of harm to valuable human resources.

U.S. safety and workers’ comp laws do not explicitly impose obligations on companies to guarantee the safety of employees sent abroad. Nonetheless, courts typically acknowledge duty of care obligations, resulting in high compensation for stakeholders that suffer harm while working abroad.

“OSHA has guidance for traveling employees, but the regulatory environment stops at the borders of the U.S.,” said Hart S. Brown, vice president of organizational resilience at Hub International. “Even then, companies are exposed to significant liabilities when their employees are traveling abroad for work.”

Hart S. Brown, vice president of organizational resilience, Hub International

The lack of specific legislation about the issue could actually make it more likely that litigation will take place, according to law office Fisher Phillips. In a recent report published by International SOS, the firm noted that, if an employee suffers some kind of injury abroad, he or she is left with little alternative but to pursue legal redress by alleging that the company was negligent towards its duty of care obligations.

Brown said researchers have found that four out of every five business travelers believe their companies are responsible for protecting them throughout their travels, and a large share of them would consider suing if an adverse event occurred.

Once the decision to litigate is made, employees and their lawyers can shop around to find the most favorable jurisdiction for their cases. Countries such as the United Kingdom and France have implemented strict duty of care legislation that can apply to international travel, and lawsuits can be initiated there if companies have a presence in those places, even if the incidents happened elsewhere.

In the case of litigation, penalties can be significant. In 2015, the U.S. Court of Appeals decided that a Connecticut boarding school failed its obligations when it took students to China in 2007 and a 15-year-old contracted bone encephalitis after being bitten by ticks. The court ruled that the school should pay damages of $41.5 million, $10 million of which was paid to the student’s family.

Identify Foreseeable Risks

To avoid such situations, companies have been urged to invest in programs that address the identification of risks, the adoption of prevention measures and the training of employees before sending them abroad. The key is to make sure that foreseeable risks are identified and properly dealt with.

Robert Quigley, duty of care expert, International SOS

“Every company is involved in different kinds of work and in different locations, so their foreseeable risks will depend on their own environment and the destination of their mobile workforce,” said Robert Quigley, a duty of care expert at International SOS. “But many companies do not act on their duty of care to the extent that they should, hoping that nothing will ever happen.”

This approach sounds misguided, especially considering the problems that employees can face away from home. They range from natural catastrophes to political violence and terrorism to accidents during leisure time and illness. Stress and depression are also concerns.

Some of the biggest threats, though, aren’t what you might expect.

“Motor vehicles are in fact the number one cause of death among aid workers,” said Lynne Cripe, director of resilience services at KonTerra, a consultancy that advises NGOs who send staff to extremely risky locations.

Another concern involves employees being jailed for breaking laws they aren’t aware of. In January, for example, a South African expat and his Ukrainian fiancée were arrested in the United Arab Emirates for having sex out of wedlock.

Laurie Sherwood, a travel industry attorney at Walsworth, said that the employer and its partners involved in the organization of a trip are expected to disclose to travelers as much as possible about the risks they’re likely to face. Therefore, a thorough assessment must be performed for all stages of a trip in order to identify all foreseeable risks.

“There is no duty to warn of unforeseeable risks,” she pointed out. “On the other end of the spectrum, there is generally no legal duty to warn of obvious risks.”

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Once risks are identified and shared with employees, companies must work towards training potential travelers and implementing systems that can help them before, during and after the trip, said Kevin Pedone, a vice president at Clements Worldwide. Pedone said specialized insurers like Clements offer online information platforms, pre-trip training and other tools to help travelers prepare themselves for the risks ahead.

In the event of an incident, these insurers have access to teams with expertise in evacuation services, medical support or kidnapping negotiations. “Companies do not want their HR staff negotiating with kidnappers,” he said.

“Many companies do not act on their duty of care to the extent that they should, hoping that nothing will ever happen.” — Robert Quigley, duty of care expert, International SOS

Once impacted employees return to the U.S., insurance can cover psychological evaluation, medical treatment, rehabilitation and even time off to help with the healing process.

Policies can also cover litigation costs, and if the organization is found negligent, any financial compensation up to the limits of the policy.

Document for Transparency

Every facet of an employers’ program for protecting the health and well-being of their traveling employees must be well documented, said Brown. It is vital, for instance, that the accountability chain in the case of an incident during an international trip is clearly specified. Individuals to whom the incident must be escalated have to be identified by title or by name, he recommended.

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In a recent report, International SOS pointed out that decision makers with duty of care responsibilities in multinational companies include managing directors, general secretaries, corporate security and risk managers, travel managers, medical directors, insurance managers, legal managers, heads of HR, global HR practitioners responsible for international assignees and employees responsible for managing the work of international assignees.

It’s not hard to see how communication can get broken with so many people involved, and why clarifying the role played by each one is an important task.

“If the company had policies and procedures in place, and the person followed them, then the company will probably be ok from a liability lawsuit point of view,” Quigley said. Doing things right can go a long way toward avoiding the publicity and uncertainty of a court case.

“Most of these cases don’t reach the courts, as they are mostly settled outside,” Quigley concluded. &

Rodrigo Amaral is a freelance writer specializing in Latin American and European risk management and insurance markets. He can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

Emerging Risks

Stadium Safety

Soft targets, such as sports stadiums, must increase measures to protect lives and their business.
By: | January 10, 2018 • 8 min read

Acts of violence and terror can break out in even the unlikeliest of places.

Look at the 2013 Boston Marathon, where two bombs went off, killing three and injuring dozens of others in a terrorist attack. Or consider the Orlando Pulse nightclub, where 49 people were killed and 58 wounded. Most recently in Las Vegas, a gunman killed 58 and injured hundreds of others.

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The world is not inherently evil, but these evil acts still find a way into places like churches, schools, concerts and stadiums.

“We didn’t see these kinds of attacks 20 years ago,” said Glenn Chavious, managing director, global sports & recreation practice leader, Industria Risk & Insurance Services.

As a society, we have advanced through technology, he said. Technology’s platform has enabled the message of terror to spread further faster.

“But it’s not just with technology. Our cultures, our personal grievances, have brought people out of their comfort zones.”

Chavious said that people still had these grievances 20 years ago but were less likely to act out. Tech has linked people around the globe to other like-minded individuals, allowing for others to join in on messages of terror.

“The progression of terrorist acts over the last 10 years has very much been central to the emergence of ‘lone wolf’ actors. As was the case in both Manchester and Las Vegas, the ‘lone wolf’ dynamic presents an altogether unique set of challenges for law enforcement and event service professionals,” said John

Glenn Chavious, managing director, global sports & recreation practice leader, Industria Risk & Insurance Services

Tomlinson, senior vice president, head of entertainment, Lockton.

As more violent outbreaks take place in public spaces, risk managers learn from and better understand what attackers want. Each new event enables risk managers to see what works and what can be improved upon to better protect people and places.

But the fact remains that the nature and pattern of attacks are changing.

“Many of these actions are devised in complete obscurity and on impulse, and are carried out by individuals with little to no prior visibility, in terms of behavioral patterns or threat recognition, thus making it virtually impossible to maintain any elements of anticipation by security officials,” said Tomlinson.

With vehicles driving into crowds, active shooters and the random nature of attacks, it’s hard to gauge what might come next, said Warren Harper, global sports & events practice leader, Marsh.

Public spaces like sporting arenas are particularly vulnerable because they are considered ‘soft targets.’ They are areas where people gather in large numbers for recreation. They are welcoming to their patrons and visitors, much like a hospital, and the crowds that attend come in droves.

NFL football stadiums, for example, can hold anywhere from 25,000 to 93,000 people at maximum capacity — and that number doesn’t include workers, players or other behind-the-scenes personnel.

“Attacks are a big risk management issue,” said Chavious. “Insurance is the last resort we want to rely upon. We’d rather be preventing it to avoid such events.”

Preparing for Danger

The second half of 2017 proved a trying few months for the insurance industry, facing hurricanes, earthquakes, wildfires and — unfortunately — multiple mass shootings.

The industry was estimated to take a more than $1 billion hit from the Las Vegas massacre in October 2017. A few years back, the Boston Marathon bombings cost businesses around $333 million each day the city was shut down following the attack. Officials were on a manhunt for the suspects in question, and Boston was on lockdown.

“Many of these actions are devised in complete obscurity and on impulse, and are carried out by individuals with little to no prior visibility.” — John Tomlinson, senior vice president, head of entertainment, Lockton

“Fortunately, we have not had a complete stadium go down,” said Harper. But a mass casualty event at a stadium can lead to the death or injury of athletes, spectators and guests; psychological trauma; potential workers’ comp claims from injured employees; lawsuits; significant reputational damage; property damage and prolonged business interruption losses.

The physical damage, said Harper, might be something risk managers can gauge beforehand, but loss of life is immeasurable.

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The best practice then, said Chavious, is awareness and education.

“A lot of preparedness comes from education. [Stadiums] need a risk management plan.”

First and foremost, Chavious said, stadiums need to perform a security risk assessment. Find out where vulnerable spots are, decide where education can be improved upon and develop other safety measures over time.

Areas outside the stadium are soft targets, said Harper. The parking lot, the ticketing and access areas and even the metro transit areas where guests mingle before and after a game are targeted more often than inside.

Last year, for example, a stadium in Manchester was the target of a bomb, which detonated outside the venue as concert-goers left. In 2015, the Stade de France in Paris was the target of suicide bombers and active shooters, who struck the outside of the stadium while a soccer match was held inside.

Security, therefore, needs to be ready to react both inside and outside the vicinity. Reviewing past events and seeing what works has helped risk mangers improve safety strategies.

“A lot of places are getting into table-top exercises” to make sure their people are really trained, added Harper.

In these exercises, employees from various departments come together to brainstorm and work through a hypothetical terrorist situation.

A facilitator will propose the scenario — an active shooter has been spotted right before the game begins, someone has called in a bomb threat, a driver has fled on foot after driving into a crowd — and the stadium’s staff is asked how they should respond.

“People tend to act on assumptions, which may be wrong, but this is a great setting for them to brainstorm and learn,” said Harper.

Technology and Safety

In addition to education, stadiums are ahead of the game, implementing high-tech security cameras and closed-circuit TV monitoring, requiring game-day audiences to use clear/see-through bags when entering the arena, upping employee training on safety protocols and utilizing vapor wake dogs.

Drones are also adding a protective layer.

John Tomlinson, senior vice president, head of entertainment, Lockton

“Drones are helpful in surveying an area and can alert security to any potential threat,” said Chavious.

“Many stadiums have an area between a city’s metro and the stadium itself. If there’s a disturbance there, and you don’t have a camera in that area, you could use the drone instead of moving physical assets.”

Chavious added that “the overhead view will pick up potential crowd concentration, see if there are too many people in one crowd, or drones can fly overhead and be used to assess situations like a vehicle that’s in a place it shouldn’t be.”

But like with all new technology, drones too have their downsides. There’s the expense of owning, maintaining and operating the drone. Weather conditions can affect how and when a drone is used, so it isn’t a reliable source. And what if that drone gets hacked?

“The evolution of venue security protocols most certainly includes the increased usage of unmanned aerial systems (UAS), including drones, as the scope and territorial vastness provided by UAS, from a monitoring perspective, is much more expansive than ground-based apparatus,” said Tomlinson.

“That said,” he continued, “there have been many documented instances in which the intrusion of unauthorized drones at live events have posed major security concerns and have actually heightened the risk of injury to participants and attendees.”

Still, many experts, including Tomlinson, see drones playing a significant role in safety at stadiums moving forward.

“I believe the utilization of drones will continue to be on the forefront of risk mitigation innovation in the live event space, albeit with some very tight operating controls,” he said.

The SAFETY Act

In response to the terrorist attacks on Sept. 11, 2001, U.S. Homeland Security enacted the Support Anti-Terrorism by Fostering Effective

Warren Harper, global sports & events practice leader, Marsh

Technologies Act (SAFETY Act).

The primary purpose of the SAFETY Act was to encourage potential manufacturers or sellers of anti-terrorism technologies to continue to develop and commercialize these technologies (like video monitoring or drones).

There was a worry that the threat of liability in such an event would deter and prevent sellers from pursing these technologies, which are aimed at saving lives. Instead, the SAFETY Act provides incentive by adding a system of risk and litigation management.

“[The SAFETY Act] is geared toward claims arising out of acts of terrorism,” said Harper.

Bottom line: It’s added financial protection. Businesses both large and small can apply for the SAFETY designation — in fact, many NFL teams push for the designation. So far, four have reached SAFETY certification: Lambeau Field, MetLife Stadium, University of Phoenix Stadium and Gillette Stadium.

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To become certified, reviewers with the SAFETY Act assess stadiums for their compliance with the most up-to-date terrorism products. They look at their built-in emergency response plans, cyber security measures, hiring and training of employees, among other criteria.

The process can take over a year, but once certified, stadiums benefit because liability for an event is lessened. One thing to remember, however, is that the added SAFETY Act protection only holds weight when a catastrophic event is classified as an act of terrorism.

“Generally speaking, I think the SAFETY Act has been instrumental in paving the way for an accelerated development of anti-terrorism products and services,” said Tomlinson.

“The benefit of gaining elements of impunity from third-party liability related matters has served as a catalyst for developers to continue to push the envelope, so to speak, in terms of ideas and innovation.”

So while attackers are changing their methods and trying to stay ahead of safety protocols at stadiums, the SAFETY Act, as well as risk managers and stadium owners, keep stadiums investing in newer, more secure safety measures. &

Autumn Heisler is a staff writer at Risk & Insurance. She can be reached at [email protected]