Out of sight but not out of mind: 2 lawyers' perspective on employer obligations for travelling workers

Aug 11, 2014

Travelling for workBy Jeremy Warning and Matthew S. Carroll

Many workers are required to travel as part of their job duties. They may travel for sales trips, service calls, conferences, client meetings, or even accompanying students on a field trip. Unfortunately, workers are sometimes injured while travelling.

There have been In one notorious example, a worker in Australia sought workers compensation benefits for injuries sustained when a light fixture fell on her while having intercourse in a hotel room. In another, a teacher in Germany successfully sought workers compensation benefits after sustaining an injury 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 have obligations to and for workers while they are travelling. What employers must recognize is that, just because they lack control over locations to which workers may travel, they may, nonetheless, have obligations arising from the travel.

Health and safety obligations

In Ontario, provisions of the Occupational Health and Safety Act ("OHSA") can obligate an employer to take steps to ensure the health and safety of travelling workers. For example, the OHSA requires employers to take every reasonable precaution for the protection of a worker. This general duty can apply in a variety of ways to require employers to address health and safety issues associated with travel. A second example is that employers have an obligation to ensure that equipment and machinery provided to workers is maintained in good condition. This obligation could apply to travel where the worker uses a company vehicle.

The extent of employers' obligations will vary with the nature and method of travel and the activities workers engage in while travelling and at their destination. Further, the steps necessary to comply must take into account the reduced control employers exercise while workers are travelling.

It is important to note that the OHSA applies only to travel inside Ontario. However, employers may still be required to comply with the health and safety legislation of the jurisdiction to which workers have travelled.

Workers compensation obligations

An employee injured while travelling, whether inside or beyond Ontario, may be entitled to workers compensation benefits. The Workplace Safety and Insurance Board's policy regarding travelling provides coverage if a personal injury by accident occurs while 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 as eating in a restaurant, staying at a hotel, or while at a gas station. 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.

Vicarious liability

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.

Discharging responsibilities

As mentioned above, the steps to discharge OHSA responsibilities or minimize the risks associated with worker travel will vary. However, some steps employers could take include:

  • advising workers on risks associated with travel and 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
  • informing workers of their rights under the OHSA and other health and safety legislation, including the right to refuse work they believe to be unsafe
  • implementing and enforcing a code of conduct or other rules regarding permissible and prohibited behaviour while travelling.

Regardless of the nature of travel performed by workers, assess the potential travel risks and identify reasonable precautions to take to address those risks.

Jeremy Warning is a partner and Matthew S. Carroll is an associate in the National OHS & Workers' Compensation Practice Group at Mathews, Dinsdale & Clark LLP in Toronto. Jeremy can be reached at jwarning@mathewsdinsdale.com or 647.777.8284, and Matthew can be reached at mcarroll@mathewsdinsdale.com or 416.869.2503.

This is the second in a two-part series. Part one, "Travelling for work: bring your employees back safe and healthy", appeared in the July issue of WSPS Network News. This article discusses travel hazards and precautions.