Duty of Care and The Future of Digital Nomads

What is duty of care and how does it play a role in this new work-from-anywhere world?

The pandemic has changed the business workforce for the near future. Increasing digital nomadism and more location-independent workers are driving focused attention among business leaders and their duty of care requirements. 

Employment attorney Nicola Comelli agrees. “As an employer, managing digital nomads can be a compliance minefield,” he said.

What is the duty of care definition? According to Jeffrey Ment, managing partner of The Ment Law Group, P.C., in Hartford, Connecticut, “duty of care means an organization has a legal obligation to take reasonable care of its traveling employees, students, faculty and so on. Duty of care means acting reasonably as a prudent person or company should act under the circumstances. What might be reasonable for travel to Miami, might not be the same reasonable for travel to Dubai.”

Popularity of the Digital Nomad Practice 

The “work-from-anywhere” model isn’t new, it was on the rise before 2019. But the pandemic boosted its participants. According to a study by the Harvard Business Review, Americans self-describing as digital nomads rose by 49%, from 7.3 million in 2019 to 10.9 million in 2020.

The recent surge is coming from people who once held traditional office jobs. “Traditional jobholders now make up a majority of those pursuing this nontraditional work lifestyle,” according to the study.

Changes in the workforce mean duty of care must evolve, too. “Duty of care today is different than it was three years ago when we weren’t thinking about COVID,” Ment said. “Today, duty of care encompasses COVID-related things like planning for procuring testing kits if you’re going to have testing kits made available to your employees in another country because they’re not able to get a testing center, or there isn’t one. Duty of care evolves with the times.”

“The pandemic has demonstrated productive work can be done from almost anywhere and that is leading to people taking advantage of that circumstance,” said Dan Richards, CEO of Global Rescue. “The prospect of working from anywhere under more flexible attendance policies is going to give many staffers the ability to live and work in places they couldn’t before.”

Digital Nomadism & Duty of Care

Digital nomadism doesn’t change an employer’s duty of care obligations, but it certainly raises awareness among C-suite executives, senior management teams, HR professionals, union leaders, government agencies and employees to examine the rigor of their organization’s current duty of care capabilities.

Employers are responsible for complying with local employment laws. If you have staff working in another country then you may be bound by foreign employment laws – including payroll tax payments, social security contributions, holiday allowances, overtime pay, maximum working hours and more. Failure to comply could result in fines or legal action.

“Your duty of care for a diverse array of travelers – like digital nomads and bleisure travelers – must provide what they need,” Ment said.

Work visas and permits can be cumbersome. Digital nomads often rely on tourist visas to enter a foreign country since that documentation is easier to obtain than a work permit. But that could be against the law depending on the duration of your stay. Forty-one countries, including Portugal, Greece and Thailand, have introduced “digital nomad visas” to remove that bureaucratic gap.

These “digital nomad visas” give workers “the legal right to work remotely while residing away from their country of permanent residence,” said Ward Williams, an associate editor with Investopedia.

Richards agrees but points out metropolitan areas may not benefit. “This will be good for the economies of many semi-rural communities, but it could be troublesome for cities.”

Managers must be aware of their employees’ locations. While the staff member is responsible for getting permission to work in a foreign country, it is up to company leadership for the business to comply with the laws of the host country.

Employer Responsibility in This “Work From Anywhere” World

One of the biggest management challenges in this evolving environment will be the ability for company leaders to update and meet their duty of care requirements to protect their employees whether they are office-bound, location-independent, or on business travel.

Company leaders like CEOs, chief security officers, travel managers and human resources directors are accountable for the development and oversight of policies, programs and logistics that protect traveling staff, whether they are office-bound or not.

“They carry a duty of care responsibility to their people, to take care of them and avoid exposing them to any unnecessary or undue risk,” Richards said. “Managing the duty of care responsibilities for a remote workforce will be a new challenge as unprecedented numbers of employees log in from the beach, mountains and other places where they’ve chosen to live,” he said.

Ment agrees. “The old plans aren’t good enough anymore. They’re rusty and they need to be dusted off and refreshed.”

Global Rescue can help you sort through the seven elements of a duty of care policy, including:

1. Who are the company directors or officers responsible for fulfilling the organization’s duty of care?
2. Does the policy include a risk assessment that includes the organization’s travel risk profile?
3. Is there a risk management plan?
4. Does the policy include a crisis response plan?
5. What is the education or training program for employees and travel risk management providers?
6. Is there a tracking method or technology capable of monitoring and assessing incidents?
7. Does the program include a post-travel feedback mechanism to help refine risk management and crisis response plans?

“It is essential that an organization’s leadership learn the laws, regulations, standards and prevailing practices of countries where their employees are visiting as digital nomads,” Ment said. “Doing so can insulate the organization from multi-million dollar judgments and significant harm to the organization’s reputation and brand.”