Recent geopolitical events have underscored companies' precarious situations when sending employees abroad. Operating in high-risk countries presents unique challenges. How do companies manage international mobility under these conditions? How do they fulfill their responsibilities to ensure the safety and well-being of their workers?
Company responsibility as defined by the Labor Code
It's crucial to understand the role of the Labor Code from the country where the employment contract originates, as it outlines the employer's duty toward their employees. Typically, employers are required to ensure both the physical and mental safety of their workers. This duty of protection is results-oriented, meaning any failure to protect employees can lead to the employer being held liable.
Employers are also obligated to keep employees informed about the safety and health conditions of the host country, including risks of infectious diseases and access to medical care. This duty of information should be continually updated, following the latest advisories from the employee's home country. Employees should not need to seek out this information themselves; it is the employer's responsibility to provide all necessary details about the foreign location. Additionally, employers must implement preventive measures, such as conducting evacuation drills.
Should an incident occur, the employer's civil liability is engaged. They are responsible for compensating any harm that the employee suffers, whether it's physical injuries from an accident at work, a car accident during a business trip, or mental and psychological trauma. If the trauma from an incident is officially recognized as a work-related accident, the employer's responsibility is further solidified.
Employer responsibility as interpreted by Case Law
In instances where the home country's laws do not explicitly address expatriation to high-risk areas, the case law of the country where the contract was signed becomes crucial. Judicial decisions in the employer's country can broaden the scope of the employer's duty of protection to include the expatriate's geographical area.
Furthermore, courts may hold employers accountable for incidents that occur outside of the expatriate's official working hours. For example, if an employee is assaulted after hours while on assignment in a high-risk country, the employer might still be found liable. In these cases, the court does not differentiate between work hours and personal time; the duty of protection applies throughout the entire period of stay in the host country.
The employer's duty also encompasses maintaining communication. If a company fails to stay in regular contact with an employee stationed in a high-risk area, this lack of communication could be seen as negligence. An employer found negligent in this manner might be held responsible for inexcusable fault, potentially endangering their employee's life.
Enhanced security measures for expats in high-risk countries
When expatriating employees to high-risk countries, the obligations to inform and plan preventive actions are heightened. Employers are required to provide detailed information about the potential risks of the assignment well in advance. This includes not only job-related risks but also broader issues like the political situation, social disturbances, terrorist threats, and drug trafficking risks in the destination country.
In addition to these precautions, employers often opt for specialized insurance policies, such as "kidnapping and ransom insurance," to safeguard both the employee and the company financially. This insurance is proactive, encompassing training for employees heading to high-risk areas. The training includes safety protocols, evacuation procedures, and psychological preparation. The insurance also extends to the expatriate's family, providing additional security and peace of mind.
Should an incident occur, this insurance coverage includes negotiation services handled by the insurance provider, further protecting the employee and the employer from the severe repercussions of such risks.
Navigating the concept of risk for expat workers
The concept of risk in international mobility is multifaceted and directly tied to the geographical location where the employee will be stationed. This includes:
- Health risks: Diseases, epidemics, and inadequate local infrastructure or availability of services and medications.
- Natural disaster risks: Potential for floods, landslides, earthquakes, typhoons, and challenges posed by rugged terrain.
- Security risks: Threats such as terrorism, war, political instability, kidnappings, and crime.
Beyond environmental and security concerns, the risk may also encompass factors like the company's reputation within the expatriation area, the specific mission, the employee's role, and their nationality. Employers must proactively manage all these risks, ensuring the physical and mental well-being of their employees before and during their assignments abroad. This includes planning for potential repatriation in the event of complications.
Failure to adequately prepare for these risks can lead to the employer being held responsible, irrespective of whether a specific incident occurs. It is the presence of risk itself that is actionable. Moreover, should an employer neglect safety regulations, they could also face criminal charges for their negligence.
