Sobriety checks at work 2023 – from when and when can an employee be tested?

Sobriety Checks at Work 2023

Among numerous demands from employers and their organisations, for a long time one of the most important was the need to formally regulate sobriety checks for employees. In response to this issue, on 21 February an amendment to the Labour Code came into effect, regulating in which situations and how sobriety checks of employees employed by a given employer may be conducted.

According to the new provisions, an employer may introduce sobriety checks provided it is necessary to ensure the protection of the life and health of employees or other persons, as well as the protection of property. The sobriety test itself must not infringe on the personal rights of the employee, in particular their dignity.

The amended Labour Code, regarding the definition of the state after alcohol consumption and intoxication, refers to the Act on Upbringing in Sobriety and Counteracting Alcoholism. According to its Article 46, the state after alcohol consumption is recognised when the alcohol content in the body is or leads to 0.2 to 0.5 per mille. The state of intoxication is recognised when the alcohol content in the body is or leads to a blood alcohol concentration above 0.5 per mille or 0.25 mg of alcohol per 1 dm³ of exhaled air.

Sobriety Checks at Work: How to Introduce Them?

To legally conduct sobriety checks on employees, it is necessary to include specific provisions in the content of the collective labour agreement or work regulations. If the employer does not have a collective labour agreement or is not obliged to implement work regulations, these provisions must be included in a notice addressed to employees.

The aforementioned internal labour law acts must include:

1. Identification of employee groups subject to the sobriety control system;
2. Specification of the methods by which sobriety checks will be conducted, including:
   1. the type of device to be used for measurements;
   2. the timing and frequency of checks;

Furthermore, the introduction of the employee sobriety control system must be communicated to them in a manner customary for the given employer, e.g. via a mailing list announcement or by posting the notice on the notice board, at least two weeks before it comes into effect.

The employer is also obliged to prepare a protocol after each sobriety test of an employee, including not only the result but also the details of the person who conducted the test.

The control can similarly be introduced in relation to substances acting like alcohol, such as various narcotics and other psychoactive substances.

Breathalyser Testing at Work: New Employer Powers

The new provisions also grant the employer the right to refuse to allow an employee who is in a state after alcohol consumption or intoxication to work, as well as an employee who has not been tested but where there is justified suspicion that they reported to work under the influence of alcohol or substances with similar effects.

The employee must be informed of the reasons for being refused work. If the employee disputes the result of the test, it is possible for the test to be carried out by an authorised public order protection body – typically the police. If the test conducted by the officers is negative, the period of refusal to work is treated as a justified absence.

This is a fundamental change compared to the previous legal situation, where the obligation to refuse work to intoxicated persons was derived from the employer’s duty to ensure safe and hygienic working conditions.

Who Can Conduct Sobriety Checks?

The new regulations do not explicitly specify the need to authorise a particular category of employees to carry out sobriety checks at the workplace. However, it should be borne in mind that data concerning the concentration of alcohol in the blood or in the exhaled air of an employee constitutes special category data under GDPR. Therefore, the person conducting the measurement and preparing the protocol must be authorised to process such categories of personal data and must do so in accordance with the applicable data protection regulations and the employer’s data protection policy.

When Will Sobriety Checks by an Employer Be Illegal?

An employer will not be allowed to conduct sobriety checks at their establishment unless the mechanism for conducting such checks is regulated in the work regulations, collective labour agreement, or appropriate notice. Furthermore, not every method of conducting checks can serve as grounds, for example, for terminating the employment relationship with an intoxicated employee. According to the Regulation of the Minister of Health dated 16 February 2023, only breathalysers and blood tests based on methods specified in this regulation can be considered when taking further labour law actions. Moreover, a faulty protocol or improperly calibrated measuring device may render the test result invalid.

Possibility of Including Contractors in Sobriety Checks

Article 22^1h of the amended Labour Code also allows the use of sobriety check powers in relation to persons employed on a basis other than an employment contract. This solution will enable the employer to introduce universal sobriety testing of workers within an effective control system covering the entire establishment, including persons employed under civil law contracts such as contracts of mandate, or various forms of B2B contracts.

Although the possibility of introducing mandatory sobriety checks represents a unique opportunity to do so in full compliance with the law, it is necessary that it is conducted in a manner that takes into account the need to make appropriate changes in the employer’s internal regulations, using the procedures provided for by the new regulations, and that the results are documented with appropriate protocols. Ensuring proper documentation, especially regarding compliance with data protection law and labour law, is essential.