Out of sight, but not out of mind
By Jeremy Warning
Many workers are required to travel as part of their jobs. They may travel for sales trips, service calls, conferences, client meetings, or even accompanying students on field trips. Unfortunately, workers are sometimes injured while travelling. There have been a number recent examples of workers being injured while travelling for work. In one notorious example, a worker in Australia sought workers’ compensation benefits after being injured after a light fixture fell on her while she was having sex in a hotel room. In another, a teacher in Germany successfully sought workers’ compensation benefits after suffering an injury sustained when she fell off a bench while dancing in a beer tent on a school trip.
While most injuries suffered by travelling workers will not be as salacious as these examples, employers can and do have obligations to and for workers while they are travelling. What an employer must recognize is that, just because it lacks control over locations to which workers may travel, it may, nonetheless, have obligations arising from the travel.
Health and safety obligations
Provisions of health and safety legislation may obligate an employer to take steps to ensure the health and safety of travelling workers. For example, health and safety legislation across Canada contains a general-duty provision. Though the wording may vary from jurisdiction to jurisdiction, each provision essentially obligates an employer to take every reasonable precaution for the protection of a worker. These general-duty clauses are flexible and can apply in a variety of ways to require an employer to address health and safety issues associated with travel. It could require an employer to review and be aware of the driving record of a worker assigned to operate a company vehicle as part of his or her regular duties.
Further, they could require an employer to implement protective measures and procedures where there is a risk to workers or the workplace from a worker who is returning after travelling (such as to an area affected by the outbreak of a contagious disease). Another health and safety obligation that can apply to travelling workers, is the obligation to ensure equipment and machinery provided to workers is maintained in good condition. This could obligate the employer to take steps to ensure the mechanical fitness of company vehicles that are used by workers. Further, health and safety legislation obligates an employer to provide information and instruction to workers. Where a worker is travelling for work, this could, arguably, require the employer to provide information to assist in protecting the health and safety of the worker. For example, workers travelling to areas with known risks might be instructed how to avoid such risks or the steps necessary to protect themselves from the risk.
The extent of an employer’s obligations will vary with the nature and method of travel and the activities the worker engages in while travelling and at the destination. Further, the steps necessary to comply will also need to consider the reduced control the employer exercises while a worker is travelling. Because the level of control exercised by the employer can vary, the effective discharge of the obligations will also vary with the circumstances. The greater the degree of control the employer exercises, the broader the measures that could be required of the employer. For example, greater obligations may exist for an employer whose worker is travelling in a company vehicle versus circumstances where the worker is travelling by taxi, train, or airplane because the employer has no control over the operation of these latter modes of transportation. Further, greater obligations could exist where workers are travelling between workplaces controlled by the employer compared to travel to locations over which the employer has no control.
It is important to note that, generally speaking, local health and safety legislation will apply only to travel inside the specific jurisdiction (usually the province). However, an employer may still be required to comply with the health and safety legislation of the jurisdiction to which the worker has travelled.
An employee injured while travelling, whether inside or beyond their home jurisdiction, may be entitled workers’ compensation benefits. In Ontario, the Workplace Safety and Insurance Board’s policy regarding travelling provides coverage if a personal injury by accident occurs while the worker is performing a work-related duty or an activity reasonably related to employment. The policy provides that workers will be covered while actively travelling for work and during activities that are associated with travel such. Those associated activities would cover injuries that occur while the worker was eating in a restaurant, staying at a hotel, or while at a gas station. The policy does not extend to cover non-work related activities. As such, workers are not covered during purely personal activities such as going to a movie or nightclub or carrying out a personal errand.
For employers, a consequence of workers’ compensation coverage during travel is that the costs associated with the injury of a worker could, in certain circumstances, negatively impact the employer’s experience rating, which could reduce or eliminate premium rebates or cause the employer to incur a surcharge.
Beyond health and safety and workers’ compensation responsibilities, employers may also be vicariously liable for the actions of travelling workers. This could include responsibility for actions that result in damages or loss to another party. Whether an employer will be liable for the actions of a travelling worker will depend on how closely the loss-causing behaviour is related to the involved worker’s duties. The greater the connection between the worker’s actions and his or her job, the greater the likelihood that the employer will be vicariously liable for the worker’s actions.
As mentioned above, the steps to discharge health and safety responsibilities or minimize the risks associated with worker travel will vary. However, some steps employers could take include:
- advising workers on the risks associated with travel and the steps that can be taken to minimize those risks
- instructing workers to follow any personal safety guidelines or recommendations provided to them during travel or at their destination
- implementing workplace violence and harassment policies that account for travel by workers
- implementing a policy on the use of handheld devices while driving
- ensuring company vehicles are properly maintained
- instructing workers of their rights under health and safety legislation, including the right to refuse unsafe work if they believe it to be unsafe
- implementing and enforcing a Code of Conduct or other rules regarding permissible and prohibited behaviour by workers while they are travelling
Regardless of the nature of workers’ travel, employers should be assessing the potential travel risks and identifying reasonable precautions to take to address those risks.
Jeremy Warning practices occupational health and safety, employment and labour law with Mathews, Dinsdale & Clark LLP in Toronto.