Managing Duty of Care Obligations in a University Setting
With globalization, the legal and moral duty of care obligations of employers for the health, safety, and security of their traveling employees have developed as a cornerstone of any human capital risk management strategy. Although universities are increasingly becoming aware of the duty of care obligations to their students, faculty, administration, and staff traveling internationally on university business, they lag other sectors and industries in implementing duty of care strategies and tactics. The purpose of this chapter is to focus on the nature of the duty of care obligations of U.S. universities, identify common mistakes universities make in managing (or failing to manage) duty of care, and suggest some leading practices to assist universities in implementing and sustaining a robust duty of care program.
With the globalization of education, there is increased international travel of various constituencies (i.e.., students, faculty, administration, and staff) on behalf of the university. The global dimension of student learning has become an integral part of the modern educational experience with students participating in study abroad programs, engaging in service-learning activities around the world, competing in athletic events, participating in cultural exchanges, and taking faculty-led international trips for credit. These international educational and living abroad activities take place away from the university’s campus. They are happening in an unfamiliar environment for the student beyond the controlled space of the classroom or campus of the partnering university. Faculty employed at U.S. colleges and universities are also traveling frequently abroad to engage in research, teaching, and professional service activities. They may be leading groups of student on trips for course credit, attend international academic conferences to present papers, pursue sabbaticals in other countries, engage in field research abroad, and share their academic expertise as a service to other countries as part of international exchanges and in response to crises (e.g., natural disasters, pandemics, etc.). University administration and staff often travel abroad for international recruiting purposes, establishing partnerships with other schools and for fundraising. In some instances, U.S. universities have established branch campuses in other countries with local and expatriate faculty, administration, and staff. As a result of these developments, international travel as part of one’s education or work entails many risks to the university in terms of the health, safety, and security of these travelers.
Universities have a legal and moral obligation to mitigate “foreseeable” risk when their students and employees travel abroad on university business. This obligation is known as duty of care. The legal notion of “duty of care” implies that individuals and organizations have legal obligations to act toward others and the public in a prudent and cautious manner to avoid the risk of “reasonable foreseeable” injury. Employers have a duty of care obligation for the health, safety, security, and well-being of their employees as they fulfill their work obligations and for their customers who use their products or services (Claus & Yost, 2010). Duty of care is a relatively new dimension of university management that is receiving increased attention—although not to the same extent as other university issues related to campus violence, sexual harassment, bullying, or student health behavior.
In a 2011 Global Benchmarking Study on duty of care, the scholastic sector ranked worst among all industries and sectors in assuming its duty of care obligations (Claus, 2011). Several reasons can be put forth for this lack of attention such as a general lack of duty of care obligation awareness, the fact that students are not employees, the independent nature of faculty, the growing budget constraints of many educational institutions, and the eroding business model of brick and mortar higher education. However, increasingly, universities are involved in litigation for failure to protect their students and faculty when traveling abroad on their behalf (Boisson v. Arizona board of Regents et al., 2015). This is not only costly for universities but also affects their reputational risk and, ultimately, their ability to attract and recruit students, donations, and funding. In the past few years, duty of care has slowly appeared on the radar screen of university administrators. This is often the case after hearing about a devastating incident involving a student or faculty member abroad. While some universities have taken proactive steps, many have not. Most universities probably fall somewhere in between, meaning that they know there are risks, but they think that it will not happen to them or simply do not have the knowhow to take concerted action to address their duty of care obligations.
The purpose of this chapter is to focus on the nature of the duty of care obligations of U.S. universities, identify common mistakes that universities make in duty of care management, and suggest leading practices to assist universities in implementing and sustaining a robust duty of care program.
The Legal Framework of Duty of Care Obligations at U.S. Universities
Universities are complex organizations. Not only do they have different internal and external constituencies—some of which are employees such as faculty, staff, administrators, and others who are students with whom they have a special relationship. There is no per se general duty of care legislation in the United States, but employees can seek damages for negligence on the part of the employer for failing to take adequate measures to protect them from reasonably foreseeable risks. This applies when employees travel abroad on behalf of their employer. Four elements generally comprise a traditional negligence cause of action: (1) a duty of care obligation that requires the employer to conform to a certain standard of conduct; (2) a breach of that duty or a failure of the employer to conform to the standard; (3) a factual and proximate cause or reasonably close connection between the injury and the breach; and (4) an injury resulting from that breach. All must coexist to claim negligence (Owen, 2007). The legal standard for establishing a duty of care obligation is, however, different for students than faculty, staff, and administrators because students are not employees of the university.
A number of legal scholars (Griffin, 2007; Rhim, 1996; Yeo, 2002; Zamastil, 2008) have reviewed the legal doctrines applicable to university duty of care of students. The conclusions that they derived from the case reviews is presented here at a summary level. Three major legal theories have evolved over time. First, it was common to use the in loco parentis (in lieu of a parent) doctrine. The university was considered a parent and had a certain authority to regulate the conduct of their students in place of the parents, resulting in a university duty of care obligations to protect their students from foreseeable harm. As a result, they had the authority to impose certain regulations on student conduct. The use of this doctrine changed in the 1950s and 1960s (e.g., during political campus demonstrations) as students were deemed to be adults (and not children) who are accountable for their own actions. Note that this doctrine is, however, still commonly applied to high school students. A second legal framework that invokes university duty of care for student is the landowner-invitee theory. The student is an invitee who enters onto the property of the school at the express or implied invitation of the property owner (i.e., the university). As a result, universities have a duty of care obligation toward their students and must prevent on-campus harms and injuries while students are on their premise. This theory is less applicable for off-campus activities. The third legal theory is that there is a special relationship between universities and students, which gives rise to reasonable duty of care to protect students from harm. This is, obviously, the case when students travel off-campus for school-related activities that are sponsored by the educational institution. This has been extensively documented for student athletics (Miyamoto, 1988; Rhim, 1996). Similarly this applies for off-campus activities related to university-organized trips (e.g., faculty-led student trips for credit). In Boisson v. Arizona Board of Regents et al. (2015), the court identified seven factors to determine whether an off-campus activity is a school activity that gives rise to duty of care: (1) the purpose of the activity; (2) whether the activity was part of the course curriculum; (3) whether the school had supervisory authority over the activity; (4) whether the risk existed independent of the school involvement; (5) whether the activity was voluntary; (6) whether a school employee was present during the activity, or should have been; and (7) whether the activity involved a dangerous project initiated on-campus but built off-campus.
The special university–student relationship can also be invoked even when students study at an educational partner institution (i.e., study abroad programs). The agreements that university enter into with educational partners constitute an agency relationship with such institutions. Hence, the university must ensure that the partners meet acceptable duty of care standards for these exchange students.
In the case of university employees, generally the staff and the administration are “at will” while faculty are usually on contract working on behalf of the institution. The U.S. legal framework for employer duty of care is not as clear cut as in other countries (especially Canada, Europe, Australia, and New Zealand). Employers have overall responsibility for health, safety, and security of their employees under OSHA, the Occupational Safety and Health Act (1970). Workers Compensation, a federally mandated benefit administered on a state-by-state basis, is an insurance that provides wage replacement and medical benefits to employees injured while working. OSHA and Workers Compensation are not extra-territorial, meaning that they do not extend beyond their boundaries. Yet, there is no doubt that a special relationship exists between the university and the faculty, staff and administration that it applies even when they are abroad. This creates under the common law concept of (torts) a special duty of care obligation on behalf of the university for the health, safety, and security of these employees whether they are “at will” or on contract and, independently whether they work on- or off-campus. Failing to assume this responsibility can lead to a claim of negligence.
Having established a legal obligation for duty of care of the university for both students and employees, the corner stone of any duty of care responsibility is for the educational institution to mitigate foreseeable risk when employees (and board of trustee members) travel for study or work purposes on behalf of the university.
Shortcomings of Universities with Regard to Duty of Care
Educational institutions overall have extremely poor duty of care performance. Key research findings comparing the scholastic sector to other sectors (government and nonprofit organizations) and industries (Claus, 2011; Claus & Giordano, 2013) indicate that educational institutions and their decision makers have lower risk perceptions, awareness, and ratings on all duty of care practices in each step of the duty of care integrated risk management model and have the lowest duty of care overall baseline (see Figure 12.1).
Figure 12.1 Scholastic sector duty of care baseline versus worldwide global benchmarking study (2011).
When it comes to managing duty of care in a university setting, educational institutions—although well-intentioned—often tend to make a number of mistakes that are not in line with the leading practices that the corporate sector is adopting.
Mistake #1: Focusing Duty of Care Attention on Students While Neglecting Faculty and Staff
The focus of U.S. universities in recent years has been on campus safety. Managing duty of care is still not on the radar screen for most educational institutions. Educational facilities are increasingly focusing on student risk (both on campus and for student trips led by faculty), but they still tend to overlook the risk associated with international travel of their employees (i.e., faculty, staff, and administration). Yet, for the most part, they endorse such travel through funding (e.g., conference attendance and sabbaticals of faculty). Even universities that are leading in terms of managing duty of care report that it is a lot easier to focus their duty of care efforts on students than on faculty. Universities must deal with a highly governance driven and independent faculty, who often decide to play by their own rules and prefer to make independent decisions (Claus, 2014). Universities must increase their duty of care awareness and knowledge at the administrative level and broaden general awareness of its importance throughout the university community. They must focus on all constituencies (students, faculty, staff, and administration) in duty of care and elevate duty of care to the same level of importance as other complex, yet conventional, behavioral health, and safety risk management issues including sexual harassment, bullying, drug/alcohol use, mental illness, and campus violence.
Mistake #2: Relying on Insurance as a Substitute for Duty of Care
University administrators rely heavily on insurance for all types of risks that students and faculty may encounter on- and off-campus. While insurance (especially health coverage while abroad) is absolutely prudent and necessary, it is not sufficient in assuming one’s duty of care obligations. Universities must go beyond insurance and mitigate all types of duty of care risk. In order to do so, they must identify the university-specific travel risks and vulnerabilities that they have and review the possible gaps and overlaps in their insurance coverage. Many insurance policies do not have an evacuation rider, nor coverage for leisure travel—often taken at the front or back end of a sabbatical or study abroad program—nor a mental illness rider. In reviewing their insurance coverage, university administrators must consider the adequacy of the minimum standard provisions that are required by law without which it would be reckless to operate any education abroad activity (Braun & Gemmeke, 2005).
Mistake #3: Not Having a Formal Organizational Structure to Deal with Duty of Care
While all organizations must deal with a lack of duty of care awareness among stakeholders, universities seem to have difficulty mobilizing and coordinating the different stakeholders involved in duty of care implementation. Educational institutions are often structured with a dual line of authority, namely an administrative and academic line, making implementation of any change in policies and procedures much more difficult. In addition, many higher educational institutions routinely do not have an integrated policy on safety, security, and crisis management (Helsloot & Jong, 2006). Somewhere within the university, there must be a formal structure to manage duty of care. When starting to implement duty of care, university administrators usually begin by setting up a university-wide duty of care task force with representatives from all campus stakeholders to identify the university’s vulnerabilities. This is a great first step but should be followed by setting up separate, yet interrelated, strategic, and tactical duty of care teams and appointing key university decision makers (ranging from safety, security, risk management, campus health, HR, travel, university operations, deans, and department heads) with well-defined roles and responsibilities.
Mistake #4: Failing to Develop a Robust Duty of Care Risk Mitigation Plan
Universities have developed campus safety and health plans to respond to various campus incidents that can threaten the health, safety, and security of students, faculty, and staff. These have often been developed a response to campus violence, the rising incidence of behavioral health issues among students and recent epidemics such as H1N1 flue, SARS, and Ebola. But, when it comes to mitigating off-campus risk, universities tend to lag behind in developing a robust duty of care risk mitigation plan. Although travel risk may differ from one educational institution to another, each university must develop a risk mitigation plan for the risks and threats that their students and faculty face while traveling for specific purposes and locations. The strategic duty of care plan (and team) focuses on developing risk mitigation plans and ensuring appropriate policies and procedures are in place while the tactical duty care plan (and incident management team) is responsible for the development of incident management protocols. Both strategic and tactical duty of care plans once implemented must be updated regularly based on changing circumstances, lessons learned, and best practices shared.
Mistake #5: Having Vague or No Travel Authorization Policies
While universities often have boiler plate policies for university travel and reimbursement, they often fall short of including travel authorizations that restrict travel to high-risk locations. A good example was during the 2014 Ebola crisis. The university’s travel management policies and procedures were inadequate to deal with students and faculty volunteers wanting to travel to the affected African countries for learning and service purposes in spite of imposed travel bans. U.S. universities had a wide range of responses ranging from prohibiting university-sponsored travel for faculty and students, banning travel with the exception of Ebola-related research and relief work that did not include direct patient contact, banning travel expect for care and assistance providers on a humanitarian mission, allowing travel on their own under the auspices of other agencies, discouraging travel, to having no Ebola-related travel policies at all (Péres-Peńa, 2014). In each case, universities had to balance the service mission of their institutions with the protection of their employees. While the Ebola may be viewed as an unusual case for concern, students and faculty commonly travel to countries with high or extreme health and security risk whether for study or research and their universities have no or limited travel authorization processes in place.
Mistake #6: Failing to Assess Health, Safety, and Security Risk Prior to Departure
One of the basic legal requirements by which employers mitigate “foreseeable” risk is by initially assessing the risk. Travel risk assessment for university-related travel, therefore, requires the university to assess the health, safety, and security risks prior to any planned trip for all travellers whether students, faculty, or staff. In doing so, they must use legitimate and reliable risk assessment sources ranging from U.S. State Department sites to the assistance of specialized risk analysis providers. The failure of universities to conduct risk assessment prior to travel, have medical and security risk level alerts in place, and make travel authorizations based on reliable risk assessment makes them extremely vulnerable. A particular risk that is often overlooked is the mental health of students and their ability to cope with an adjustment to a foreign country often leading to repatriation and evacuation of students prior to the end of their scheduled study abroad program (Quigley et al., 2015).
Mistake #7: Inadequately Preparing Students, Faculty, and Staff for International Travel
While many universities have extensive cultural, educational, and other preparation for study abroad and faculty-led international programs, they rarely include duty of care education and training. Duty of care preparation includes communicating the extent of the risk of the country under consideration, prescribing preventive courses of action to mitigate risk, educating students and faculty on restrictive behaviors while abroad, and ensuring that they are prepared to deal with different potential risk scenarios. Even low-risk countries can be potentially dangerous as travellers find themselves in unfamiliar environments. Real-time risk data based on the university’s travel risk profile can provide opportunities for teachable moments with faculty and students. This allows the university to proactively intervene with a customized just-in-time online-delivered intervention.
Mistake #8: Ignoring Where Their Travellers Are at All Times
In order to be able to assist students and faculty when studying or working abroad, universities must be able to identify where their travellers are located at all times. Yet, most universities do not have the capability to track traveling students and faculty. Hence, in case of a natural disaster (e.g., earthquake, tsunami, etc.), human-made disaster (e.g., political unrest, terrorist attack, war, etc.), or personal emergency incidents (e.g., road accidents and illness), they are not in a position to assist their students and faculty and/or evacuate them when needed. Only when they are able to locate and communicate with their traveling students and employees can universities advise them what to do. In addition to tracking their travellers, universities are also starting to implement emergency response notification systems and engaging reliable assistance providers for dealing with the medical and security incidents of their traveling faculty, staff, and students.
Mistake #9: Failing to Enforce Their Travel Management Policies and Procedures
Many organizations often fail to ensure compliance their travel policies and procedures and universities are no exception. Even with the best duty of care plans, policies and procedures in place, unless universities can create a reciprocal duty of loyalty from their faculty and students, their risk management efforts will not be successful. In a true duty of care culture, students and faculty do not compete with the interests of the university but follow the policies and procedures that have been designed to mitigate travel risk and protect them from harm to the extent possible. This includes, among others, the use of approved travel vendors, obtaining travel authorization, ensuring that travellers have completed required training prior to departure and linking faculty travel reimbursement to compliance.
Mistake #10: Poorly Managing Their Reputational Risk When Incidents Occur
A final mistake that universities make is that they often lack a coordinated internal and external response to duty of care incidents involving their students or faculty. Unless they have an incident and crisis management plan (and team) in place and good coordination with their assistance providers, the internal coordination of their activities and decision making is often jeopardized and may they set themselves up for law suits by the way they handle an incident. Universities must also properly deal with these incidents externally with the public at large and manage their reputational risk. Unless a university public relations spokesperson is a member of the duty of care incident management team, miscommunication often occurs. In case of duty of care incidents, a certain amount of damage control may be required to “stay on top” of social media related to the incident as its usage is very much part of the university community and often the source of misleading data.
Leading Duty of Care Practice for University Management
Even with the best planning and risk mitigation mechanisms, things do happen and no one can fully prevent the various health, safety, and security threats that are out there. Yet, duty of care best practices inform employers of standards of practice to which they are expected to be held by their internal and external stakeholders. Operating at a standard also helps fend off duty of care negligence lawsuits that are increasingly common in the nonprofit scholastic sector.
Specific best practices for university administrators to implement regarding duty of care management have been proposed overall as well as for universities that are still new to duty of care (Claus, 2014; Claus & Yost, 2013). These best practices follow the steps of the duty of care integrated risk management model (Claus & Giordano, 2013). In Figure 12.2, a number of leading practices and specific action steps are suggested for managing the duty of care shortcoming identified in the university setting.
Figure 12.2 Leading duty of care practices and action steps for university management.
Conclusions
It is unfortunate that many universities are still not aware of the risks associated with the travel of students, faculty, and staff under their auspices. It often takes an incident or law suit in the educational sector to raise awareness of their moral and legal duty of care obligations. Yet, even when are aware of the need to mitigate these risks, they—often unknowingly—make mistakes. This chapter discussed the legal obligations of U.S. universities to mitigate travel risk, identified common mistakes universities make in managing duty of care, and suggested some leading practices to assist universities in implementing and sustaining a robust duty of care program. It is ironic that institutions that are charged with the education of others often fail to educate themselves in regard to their duty of care obligations.
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