How Far Does The Duty Of Care Extend?

We know that every company has a basic duty to treat traveling employees fairly and to protect them. Protecting means not exposing them to "known or foreseeable harm or risk of harm." An equal duty is imposed on travel management company "agents," even though they are agents appointed, accredited and paid by suppliers. (For agents, overrides continue, although not visibly.)  [more]
The TMC duty by law applies directly to all its customer travelers, as does the duty to employees by their employer companies. We have a U.S. body of common law that imposes and affirms these duties, enforceable in civil court in damage suits. In the United Kingdom, a criminal statute imposes a manslaughter penalty against corporate officers, but no such specific statute yet exists in North America. General criminal law by state could, however, reach companies and their officers in gross cases of negligence and harm, either knowingly caused or as a result of known hazards that are ignored or should have been foreseen.
Suppliers like airlines, car rental companies and hotels also have a duty to alert their customers to known threats and avoid to the extent practical any harm to the passenger, renter or hotel guest.
Facts control whether knowledge was such or should have been sufficient to take action to avert harm. One hotel years ago faced a lawsuit for not knowing of and correcting peepholes in the walls of bathrooms. Settlements often result but can be costly, and litigation is the most expensive result that can occur.
In times of rampant terrorism, there is understandably more intensive concern by companies and also by TMCs to avoid legal risk by being diligent and observing the minimum standard. What this means will vary considerably by the situation at time of booking and time of travel. Unforeseeable terrorism that happens during a trip cannot obviously be considered a lapse at time of booking or the beginning of the journey. However, the duty of care requires warnings en route by both company and TMC. This is true so long as the threat is a known one and not secret only to the perpetrators. An example is a 1989 Paris-Detroit flight in which a bomb threat was relayed from U.S. authorities. The airline notified passengers. Most, except for some reporters, delayed their return.
What is the difference between rumor and a credible threat? The line can be narrow. Threats substantiated by State Department advisories, news coverage, and prior or current violence--like a bombing by the same group now alleged to be planning an attack--can qualify as situations that require warnings or strong recommendations not to travel or to return quickly. The safe policy is the conservative one. Aircraft with crash histories or airlines with more one or two fatal crashes caused by unremedied defects in few months should be avoided or at least warned against.
Practicality has to be balanced against overreaction in commercial travel programs. A recent study claimed travelers on the road 14 or more nights a month could face serious health hazards. In the extreme, this suggests most business travel is "unhealthy." This certainly cannot as a legal matter constitute a duty to stop such travel, which would bring commerce to an abrupt halt.
Fitness programs, recommended healthy eating in bulletins, stress management programs, counseling for obesity, incentives for weight and routine required physicals for health risks can help defend a court case by a traveler's family claiming violation of duty of care. Watching for individuals with known health problems is wise if they travel at least two weeks per month. Substituting a healthier co-worker is one option to cut risk. More reliance on videoconferencing, eliminating travel, is the best way to ensure safety.
What are few basic steps to be proactive?
• Internal or external safety alerts including warnings en route
• Required use of preferred hotels, since booking outside makes warning difficult if not impossible
• Cell phone location technology, although there can be privacy issues
• Contractual provisions in supplier discount programs confirming legal duty on the supplier
• Careful RFP investigation of the track record of all qualified suppliers. Crime statistics in a neighborhood of a hotel or within the hotel might suggest at female travelers be cautioned or required not to use such a hotel.
• Pay attention and adopt customized policies to protect solo female travelers.
• No reimbursing Saturday-night stayovers. The injured employee cannot claim they were 'bribed" into danger by lingering when they could have left Friday, even if it would have been more expensive. This is less of a problem today. Such faring restrictions are falling away due to budget carrier competition and more flexible repricing by the majors.
• When the situation is doubtful as to foreseeability, take the conservative step to suggest against or forbid travel.
• Use waivers, for especially dangerous areas like most the Mideast
• CTDs need to realize they are in the travel business and take direct liability risk with no in-between TMC to insulate them.
Companies cannot be too careful these days. The same goes for suppliers, especially TMCs, who have the first and last contact with the traveler.