Duty of Care: An Employer’s Guide to Legal and Moral Responsibilities
In this post, we’ll examine what duty of care is, how it can impact your business, and answer some frequently asked questions about this highly complex subject.
Duty of care—you might have heard the phrase tossed around by companies touting their dedication to employees and workplace safety. When some people hear the phrase, they associate it with law firm commercials, personal injury lawsuits, and big payouts. But what exactly is it?
In this post, we’ll examine what duty of care is, how it can impact your business, and answer some frequently asked questions about this highly complex subject.
What Is Duty of Care?
Duty of care is the legal obligation to prevent harm and protect others while they are in your care or employment, using your services, or exposed to your activities. The concept is related to other legal responsibilities such as “ordinary care” or “reasonable care,” which essentially mean “what is expected of most people in most cases.”
For a property owner, your duty of care may cover anyone on your property, and for an employer it would cover employees, contractors, and customers. Depending on the particular situation, there may be more or less strict liability, but you are expected to do your due diligence to prevent harm.
Legalese
Because the term is often used in tort law, it’s also important to look at how the courts view legal duty of care. According to Law.com, duty of care is a requirement that a person act toward others and the public with the standard of care (watchfulness, attention, caution) that a prudent person in similar circumstances would use. The “reasonable person” standard is an objective test that jurors and judges use to determine if a defendant’s actions align with those of a hypothetical, ordinary person.
Put simply, duty of care is the standard by which someone is held liable for a plaintiff’s injury in personal injury cases like medical malpractice, car accidents, slips, and falls. If a person or organization is in breach of duty of care, they may be held liable for negligence.
Duty of care is a moral matter
This post will focus on what it means from an employee safety and organizational liability standpoint, but a company’s duty of care is about more than just liability. Businesses have a moral duty of care to protect their employees and prevent harm while on the job, no matter what kind of work is being done. There is a moral responsibility of employers to protect their employees, so prioritizing safety is simply the right thing to do, on top of being a matter of good faith and a legal requirement.
Practical terms
That may sound pretty abstract. So, let’s make it practical. Duty of care means ensuring the safety of your international business travelers. It means creating a work environment that safeguards employee health during a pandemic or when working with hazardous materials. It means notifying and providing safe accommodations for workers exposed to severe weather or other nearby environmental threats.
In other words, duty of care means recognizing that your organization has an obligation to keep your people safe while at the workplace—wherever that may be.
Having a breach of the duty of care you are providing isn’t always a matter of recklessness. Sometimes, even a slight oversight can pose a substantial risk. For example, an employee in New South Wales won a recent lawsuit against their employer after a car accident on the way home from their job caused by “work-induced fatigue.” The courts ruled that the employer had failed to properly care for the safety of their employee, even though they had a fatigue prevention plan, and that negligence resulted in over a million dollars in damages. Duty of care cases can be expensive, and they can damage your company’s reputation as well.
Duty of Care Then and Now
Duty of care originated as a common law principle in the 19th century. It further developed after the Second Industrial Revolution to protect factory workers from harsh and dangerous labor conditions.
Recently, though, duty of care has grown to become much more than an ambiguous legal term. In the past 10 years, lawmakers and employers have put an increasing emphasis on the foreseeability of events—strengthening laws and recognizing that employers have a responsibility to employees, customers, and shareholders to assess risks and take appropriate actions to mitigate them. As a result, modern definitions of duty of care broadly encompass a company’s legal, ethical, and fiduciary duty to protect employees from unnecessary risk of harm when working or traveling on behalf of the organization.
But what is your company’s duty of care?
Unfortunately, there is no one-size-fits-all answer to that question. The responsibilities will look slightly different for each company—depending on how your employees spend their day at work. For example, a construction company’s duty of care efforts will likely differ from a software company’s.
But several considerations apply to every company: risk assessment, planning, prevention, and communication. No matter what the threat to your employees is, your company needs to take steps to prevent it from happening. Have a plan in place in case it does happen and have a way to communicate with your employees during and after the threat.
Which Type of Employer Are You?
When considering duty of care, there are three categories of employers:
- The Uninformed Employer—If you’re the Uninformed Employer, you simply don’t understand your responsibilities regarding duty of care. Maybe you’ve never seen the term before or never known what it meant. You could be the most well-intentioned in the world, but it’s hard to fulfill your responsibilities if you don’t know your responsibilities.
- The Bare Minimum Employer—If you’re the Bare Minimum Employer, you know full well what you are supposed to do to protect your employees. You do meet those requirements but only just, and you choose not to do anything above and beyond for safety.
- The Employee-First Employer—If you’re the Employee-First Employer, you know your requirements and fulfill them, but your focus is on caring for your team’s whole health and wellness. You do whatever it takes and prioritize your employees above all.
None of these types of employers are wrong; if you’re the Uninformed Employer, you don’t know what you don’t know, and if you’re the Bare Minimum Employer, you’re still meeting your requirements. But the Employee-First Employer is a shining example of a workplace safety mindset that will pay off in the long term. Employees are more likely to stay with the company when they are put first. And when safety is prioritized above all, fewer accidents and injuries will occur.
As you learn more about your duty of care in this article, it’s a great time to ask yourself, which kind of employer are you? And which kind do you want to be?
Duty of Care at Work
Duty of care has tangible implications for every company, no matter the size. Start by considering the worst-case scenarios for your organization. For example, what happens if an employee gets in a car accident in the office parking lot? Do you have a plan if an employee contracts an illness while working internationally? What if an employee suffers an accident traveling between job sites?
All of these questions raise important legal and moral questions about an employer’s responsibility to their employees. It’s important to distinguish and define the difference between an ethical and legal duty of care. Duties arising from ethics or morality are called moral duties, while duties created by the law are called legal duties. To protect your employees, customers, and anyone on company property, you need to consider both when planning to fulfill your duty of care.
Protecting workers anywhere they work
Protecting workers in an office or at a job site can be complicated enough, but when you factor in protecting your remote workers or business travelers, things can get even more complex. The same expectations for safety still stand for your team members who are spread out around the globe, but your execution is going to look a little different.
Instead of mitigating hazards in your facility, you may use threat intelligence and monitoring to track threats near your offsite employees. Instead of providing live safety training in a conference room, you may choose an online version of that safety training so everyone can benefit. And instead of doing risk assessments for a single location, you’ll be performing assessments for any location where you have someone working.
Who Is Responsible for Duty of Care?
At this point, you might be wondering who in your organization should be responsible for fulfilling duty of care obligations. That can be a complicated question—and the answer will partially depend on your company’s size and organizational structure.
In larger organizations, there may be dedicated employee safety positions. Common job titles include EHS (employee health and safety), BC/DR (business continuity and disaster recovery), Risk Management, and Emergency Preparedness. These roles are specifically designed to handle the general duty of care obligations.
But the presence of these roles should not give other managers in your organization the impression that they don’t need to worry about duty of care at work. Duty of care needs to be on the mind of all your managers.
If you are in charge of facilities maintenance, you have a duty to ensure your facilities are prepared for a wide array of emergencies. If you are responsible for business travel care, you have a duty to monitor your business travel locations for risks. If you manage a team during a pandemic, you have a duty to mitigate the risk of infection for employees working on your team.
But in any organization—no matter the size—human resources will play a critical role. HR is the one department in an organization that works closely with every business function. This means that many duty of care concerns that require company-wide coordination will necessarily fall on HR.
At the very least, human resources should handle the communication and coordination portions of your organization’s duty of care obligations. Your HR department should be comfortable using your company’s emergency communication system and should be in charge of all internal communication about duty of care initiatives.
The Impact of Duty of Care
Aside from the legal implications, putting employees first—especially when it comes to their health, safety, and well-being—is simply a good business decision. It ensures business continuity, maintains employee morale, and supports employee loyalty and retention.
Show your employees that you are taking proactive measures to keep them safe. As a result, they will be more motivated and productive than those who feel like a commodity. Statistics back this up. Studies have found that companies with exemplary safety, health, and environmental programs outperformed the S&P 500 by between 3 and 5%. Thus, taking proactive measures to fulfill your duty of care obligations will typically pay significant dividends down the road.
To accomplish this, think about the risks your employees face. Then, take some time to re-examine your company’s measures. Are you prepared to keep your employees safe even in the case of threats like fires, hurricanes, and active shooters? You can never know which of those threats will impact your people. But one thing is certain: You will need a way to communicate with your employees.
Frequently Asked Questions
What is the definition of duty of care?
Duty of care is the legal and moral obligation to safeguard others from harm while they are in your care, using your services, or exposed to your activities.
What are some examples of duty of care obligations?
Some duty of care examples include keeping business travelers safe while abroad, taking precautions to ensure that your facilities are prepared for emergencies, and switching to remote work when a commute or in-person work would put employees at risk.
What can employers do to show that they are fulfilling their duty of care obligations?
Legal impact: Learn how duty of care laws impact every area your employees will be working in, or you could find yourself liable.
Planning: Consider all possible situations that could arise for your company and create your response plan in advance.
Policies: Employers should create a duty of care policy and circulate it among the company. This will help managers know what is expected of them and show employees what steps the organization is taking to ensure their safety.
Open communication: Let your employees know the measures you are taking to protect them. This will make them more receptive to doing their part and helping you help them.
What are the employers’ responsibilities related to corporate travel and remote work?
Employers have a duty of care to ensure their employees are safe no matter where they work. This may mean ensuring your employees use safe methods of travel, as well as monitoring all business travel locations for time-sensitive and perpetual threats. For remote workers, this may mean monitoring threats near employee homes or providing cybersecurity training for those working in public spaces. You should also ensure consistent, open communication with your employees, especially when they are away from the facility.
Ensure You Have the Right Tools to Protect Your Employees
Duty of care in the workplace is more important than ever, and now is the time to ensure your organization isn’t left behind. Fulfilling modern duty of care obligations means using modern solutions. Make sure that you have a robust, reliable, two-way emergency notification system in place. By having the right processes and tools in place, you’ll soon find it’s possible to efficiently and effectively communicate with employees about all kinds of emergencies and other potential threats, protecting both them and your business.
