When Can an Employer Check an Employee’s Sobriety? Proposed Changes to the Labour Code.

The Ministry of Development, Labour and Technology has prepared a draft amendment to the Labour Code and the Act on Upbringing in Sobriety and Counteracting Alcoholism regarding the testing of employee sobriety. The regulations also cover substances that act similarly to alcohol, such as designer drugs and other psychoactive substances.

Current legal status

Currently, the issue of testing employee sobriety raises many controversies. Employers are not authorised to carry out independent or random checks for the presence of alcohol or other substances in the body. As a result, they often have to resort to calling the police.

According to the Ministry’s explanatory memorandum, the inability to verify an employee’s psychophysical condition – in relation to certain groups of employees – may pose a threat to the health and life of the employee under the influence of such substances or agents, as well as their co-workers and third parties. In some cases, it may also risk damage to the employer’s property.

New control procedures:

According to the statement issued by the Ministry of Development and Technology, the changes will include:

• the establishment of legal grounds allowing the employer to introduce – due to a legally defined purpose – random checks of employee sobriety or for the presence of substances acting similarly to alcohol in their bodies (these purposes will be: the need to ensure the protection of life and health of employees or others, or the protection of the employer’s property);
• the establishment of rules for carrying out tests, particularly rules for processing by the employer of information indicating the presence of alcohol or a substance acting similarly to alcohol in the employee’s body, including e.g. the length of time such information may be stored;
• the obligation for the employer to identify the groups of employees subject to such testing and to inform them of its implementation at least 2 weeks in advance;
• concerning the employer’s obligation to prevent the employee from performing work:
  • maintaining the current regulation in cases of justified suspicion that an employee has arrived at work under the influence of alcohol or has consumed alcohol during working hours,
  • introducing a regulation obligating the employer to take the same action in cases of justified suspicion that an employee has arrived at work under the influence of a substance acting similarly to alcohol or has used such a substance during working hours,
  • introducing a regulation obligating the employer to act when a preventive sobriety test detects the presence of alcohol in the employee’s body or a preventive test for the presence of a substance acting similarly to alcohol detects such a substance in the employee’s body;
• regulating the procedure for conducting tests to determine the presence of alcohol or substances acting similarly to alcohol in the employee’s body by an authorised body responsible for public order protection;
• introducing the possibility of applying the above solutions accordingly to employers engaging individuals under contracts other than employment contracts, as well as self-employed individuals;
• supplementing the list of grounds in Article 108 § 2 of the Labour Code justifying the imposition of a warning, reprimand or financial penalty on an employee to include cases where an employee arrives at work under the influence of a substance acting similarly to alcohol or uses such a substance during working hours.

Once the proposed changes enter into force, employers – meeting the statutory conditions – will be able to independently check whether an employee is sober when reporting for work and whether their body contains substances acting similarly to alcohol.

Importantly, the proposed provisions allow the employer to test for the presence of alcohol or substances acting similarly to alcohol in the employee’s body, not their content or concentration.

Sobriety tests or tests for the presence of substances acting similarly to alcohol will also be carried out by the police, at the request of either the employer or an employee prevented from working.

At the same time, appropriate safeguards will be ensured to protect the rights of employees subject to such checks.

The regulations may also be applied to individuals working under legal arrangements other than employment contracts. The same applies to self-employed persons.

The draft does not include a definition of substances acting similarly to alcohol, nor does it refer to other legislation in this regard. It can be presumed that the Ministry will supplement the draft with a definition, a list of substances, or a reference to the relevant provisions of the Act on Counteracting Drug Addiction.

Controversies

In addition to the lack of clarity resulting from the absence of a definition of “substances acting similarly to alcohol”, Polish employers also point out the lack of regulation concerning the tools to be used by employers for conducting sobriety tests. Breathalysers available on the market vary in measurement accuracy, which the amendment does not take into account.

Another issue relates to the obligation to retain information about alcohol consumption in the employee’s personal files, in exceptional cases for longer than 6 months. According to some employers, this manner of fulfilling the information obligation constitutes unnecessary formalism and exposes them to additional costs.

The draft is currently undergoing public consultation. The provisions are intended to enter into force 14 days after their publication.

Link to the draft amendment: https://legislacja.rcl.gov.pl/projekt/12347305