Does a Travel Advisor's Duty of Care Change with Bleisure Travel?by Paul Ruden /
Bleisure travel, the joining of business and pleasure travel, has been around for years, gaining its odd name well before the pandemic. We recently heard a suggestion that “bleisure” travel might change the “duty of care” that travel advisors, and travel suppliers, owe to their travelers. I don’t know how the courts will rule on this over time, but I see no reason to believe that the duty changes because a traveler elects to add leisure travel before, during, or after a business trip. But, as always, it can be complicated.
If you have no experience with business travel, you may not be familiar with the “duty of care” concept. Several general discussions can be read here, here, here, and here (when reviewing these, note that some are marketing sites).
I have not seen any meaningful data on how much corporate compliance with the duty of care occurs. Since failure of a company to comply could lead to denial or limitation of insurance claims, companies and those who arrange travel for them must pay attention to this subject.
Larger corporations are typically aware of their duty of care and have detailed policies governing the company’s responsibilities. If the company elects to limit its obligations when a traveling employee goes “bleisure” on his own, that is primarily the company’s problem of managing its employee relations. That is the simple case.
The harder case is one in which the bleisure traveler elects to buy the leisure component from an advisor other than the contracted corporate agency. The insurance company that covers the company’s travel program may contractually limit its obligations when the employee books outside the company’s travel policy, but that decision does not relieve the travel advisor booking that bleisure trip of her responsibilities. The situation may be further complicated by whether the leisure component will occur before, after or in the middle of the business travel.
The law generally leans toward the idea that travel advisors are “fiduciaries” in relation to the travelers whose bookings they make. The scope of this obligation is similar to that of the corporation’s obligation to take reasonable care of its employees “on the road.” This obligation is present regarding the leisure component even if the “origin trip” was created through the corporate agency.
Every travel advisor knowingly selling leisure travel as part of an independently established business travel experience should establish a standard practice of inquiring of the company involved precisely what “duty of care” obligations that company expects from the advisor, if any. I suggest this not because the company can enforce its responsibilities on the independent advisor but because of the practical issues that can arise when intervention is required. The independent advisor should be aware of how prepared the corporate employer is to engage on behalf of its employee so that the advisor does not undertake actions that might be at cross-purposes with the response of the corporate employer. On the other hand, if the corporate employer has a “hands off” policy regarding employees on bleisure trips, the advisor will surely need to be aware so it can act appropriately to assist the traveler when possible.
The first principle then is to understand the need, or lack of need, for cooperation in support of the bleisure traveler who has an issue. Recognize, however, that the traveling employee may not agree that the independent advisor is relieved of obligation just because the corporate employer says so. That is why it is important in this situation to clarify roles with all parties before travel starts.
It’s also important to view these scenarios realistically. The advisor may be a fiduciary but is neither a guarantor nor an insurer of the travel experience. Common sense goes a long way here. In my view every advisor should consider at least the following issues when booking bleisure travel:
Is there a corporate policy providing duty of care for the employee on bleisure travel? If yes, how does that policy affect the approach of the advisor?
Does the corporation subscribe to a duty of care product independently or through the travel agency/management company? Most large corporate travel management firms offer corporations a duty of care option. Some host agencies and consortia also make such services available to their members.
Is there information suggesting unusual risks to the travelers about which they should be warned or alerted?
This includes civil/military unrest, terrorism, extreme weather conditions, and medical concerns such as very high COVID-19 community transmission rates at the destination.
Is the destination ill-equipped to deal with medical issues that might arise? Has the client consulted travel insurance advisors regarding the adequacy of their coverage?
Are there issues arising from the particular characteristics of the client that warrant a cautionary note or special planning?
Advanced age or infirmities are obvious concerns, but any other special vulnerabilities are also involved here. The presence of young children may be a factor requiring deeper conversations about the nature of the travel.
Do travelers have special health issues that bear on the wisdom of traveling to a certain place?
Are the travelers new to the planned experience, such as first-time cruisers taking a trip with high levels of physical activity or facing possible stressful weather conditions on the itinerary?
In practice, much may depend on the extent the advisor is aware of and can rely upon the level of travel experience the consumer is known to have. Obviously, I believe, the disclosures required for a very experienced traveler should be less extensive than for a first-timer or someone who has not traveled in a long time. Conditions can change quickly, and new or infrequent travelers may require more attention. Most travelers fly only once or twice a year and it is not reasonable to expect them to know as much as, for example, a frequent business traveler.
I emphasize that I don’t believe the travel advisor is responsible for imagining and addressing every conceivable issue related to planned travel. And the disclosures must be presented in a way that does not terrorize the traveler and lead to unwarranted caution or cancellation.
On the other hand, consumers use professional advisors for reasons going beyond just making bookings. The courts tend to view advisors as having heightened responsibilities to anticipate problems that their clients may overlook. That is part of what it means to be a professional with fiduciary responsibilities.
It is impossible in the abstract to specify just how much “duty of care” an advisor must bring to bear because each case may entail different considerations. As ASTA has stated recently, the list of disclosures required of travel advisors is quite long already and the Department of Transportation is considering adding to the list in the ancillary fee rulemaking. The complexity of the information relevant to a trip is itself an issue that must be considered. Too much information can be just as problematic as too little.
Risks cannot be reduced to zero, and travel advisors in my judgment cannot be held to a zero-risk standard. Instead, the test should be, what is reasonable in the circumstances, considering the characteristics of the traveler and the most likely issues that might arise on the trip? You cannot treat everyone the same because they are not the same. The risks involved in travel do not have to be overblown to the point that people don’t want to travel unless there are specific reasons for added caution.
We know that there is still large pent-up demand for travel arising from the pandemic restrictions of the past two years. This demand is great for the industry, but it may also incline some travelers to ignore some realities of their travel experience. Watch for the signs that the traveler’s desire to travel is overriding an appropriate degree of caution.
Finally, when the unexpected and perhaps the totally unpredicted or unpredictable happens, what should the advisor do to help the customer? The stories of advisors stepping in to rescue stranded travelers and otherwise to use their expertise and connections to address unexpected problems are legendary in the industry. In the end, most advisors know that while their fiduciary responsibilities cannot always be planned out in advance, they must be, and they are, prepared to step in and do what can be done to support their travelers’ needs. Coordinate with the employer company when possible but never leave the client twisting in the wind when something serious has occurred. In the worst cases, involve your counsel and insurance advisor regarding what you can and should do.