Law

(R)evolution in employee sobriety testing rules?

For a few weeks now, on the website of the Government Legislation Centre, one can read a draft amendment to the Labor Code and the Act on Upbringing in Sobriety and Counteracting Alcoholism. The draft proposes to develop and simplify the procedure of testing employees' sobriety by allowing employers to perform the sobriety tests of their employees on their own, as well as to extend the scope of the tests from the point of view of their subject matter – to include other substances with similar effects to alcohol, and from the personal point of view – to include persons cooperating with the employer on a basis other than employment relationship.

EXISTING RULES FOR PERFORMING SOBRIETY TESTS

One of the key duties of an employer is to provide employees with safe and healthy working conditions. This obligation is fulfilled by, among others, monitoring that the employees admitted to work are sober.

The detailed legal basis for that obligation can be found in Article 17 of the Act on Upbringing in Sobriety and Counteracting Alcoholism of 26 October 1982. According to that provision, the manager of the workplace or a person authorized by the manager has a duty not to allow the employee to work if there is a reasonable suspicion that the employee came to work under the influence of alcohol or consumed alcohol while at work.

Importantly, a reasonable suspicion that an employee is intoxicated (e.g., slurred speech or intense alcohol odor) may constitute grounds for not allowing the employee to work (without the need to conduct a test). In such a situation, the employee should only be informed about the circumstances underlying the employer's decision.

However, the actual verification of the employee's state of sobriety is more problematic. According to the law, it may take place at the request of the workplace's manager or a person authorized by the manager – with the consent of the employee or at the request of the employee removed from work. In practice, the most common reason for control is the latter case.

An additional complication is the obligation to conduct a sobriety test of an employee only by an authorized body appointed to protect public order (e.g. police officer or municipal police officer), and the blood draw can be done only by a person with proper professional qualifications (e.g. paramedic, nurse).

In addition, it should be emphasized that currently there is no basis in Polish law for testing employees for the presence of any substances similar to alcohol in their bodies.

SOBRIETY TESTING AND THE GDPR

The admissibility of employee sobriety tests began to raise additional concerns after the implementation in Poland of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC, commonly referred to as the GDPR. Under the regulation, it is prohibited to process, without specific justification, special categories of personal data, which include health data.

Initially, experts argued whether information about a temporary state of the body such as the state of intoxication constitutes information about health. In the end, the dispute was cut short by the President of the Office for Personal Data Protection, who recognized that information on the state of drunkenness is information on health, which therefore constitutes sensitive data and its processing requires special justification.

As a consequence, in the current legal environment, the employer may process information on the presence of alcohol in the employee's body only with the employee's consent expressed on his/her own initiative. In such legal environment, effective and lawful monitoring of employees' sobriety could be a challenge for employers.

PROPOSED LEGISLATIVE CHANGES

According to the proposed wording of the amendment, the premises authorizing an employer to conduct sobriety tests have been extended. The employer will be able to introduce sobriety tests for employees whenever it is necessary to ensure protection of life and health of employees or other persons, or protection of the employer's property. Taking into account the general nature of these premises, it seems that the legislator's intention is to allow for random and preventive checks, and not only to confirm the sobriety of employees whom the employer will suspect of being intoxicated.

An important novelty will be the employer's ability to perform sobriety tests on its own, as it will be possible to conduct such tests using methods that do not require a laboratory test (e.g., using a certified breathalyzer).

As before, the employer will have the right not to allow the employee to perform work in the event of:
1. ascertaining the presence of alcohol in the employee's body in an amount qualified as being under the influence of alcohol (concentration of alcohol in blood from 0.2‰ to 0.5‰ or presence of alcohol in exhaled air from 0.1 mg to 0.25 mg in 1 dm3),
2. a reasonable suspicion that an employee came to work under the influence of alcohol or consumed alcohol in the course of work.

At the request of the employer or an employee who has not been admitted to work, a test of the employee's sobriety will still be able to be performed by an authorized law enforcement agency using a method that does not require a laboratory test. The blood test should be used only afterwards or when it is not possible to use a non-laboratory method.

The current procedure based on a reasonable suspicion of being at work after using alcohol or consuming alcohol in the course of work is to be maintained.

What is new, however, is that it will be possible to conduct additional tests of preventive and random nature to check for the presence of alcohol rather than for its content. This means that the employer will be able to use a device which does not indicate a specific value, but only shows the presence of alcohol in a quantity qualified as being in a state after consumption of alcohol. At this point, it should be emphasized that the presence of alcohol at a level lower than that defined as being in a state after consumption of alcohol should not be penalized.

TESTING FOR THE PRESENCE OF SUBSTANCES SIMILAR TO ALCOHOL IN THE BODY

In its current form, the amendment additionally provides for employers to be able to test employees for being under the influence of other substances with similar effects to alcohol.

The reasons and procedure for carrying out such tests will be analogous to the procedure adopted for checking the sobriety of employees.

Importantly, given the lack of a statutory catalog of substances with similar effects to alcohol, the implementing regulations will include a list of such substances.

THE NEED TO IMPLEMENT NEW RULES

The introduction of sobriety tests for employees will need to be formally implemented in a collective agreement, work regulations or, in their absence, in the form of a notice to employees. First of all, it will be necessary to indicate the groups of employees covered by the check (e.g. only factory workers), the method of measurement (e.g. type of breathalyzer or other measuring equipment) and the manner of conducting the check (e.g. every day before starting work).

The new procedure will not be able to be applied until 2 weeks after it has been announced to employees, and the employer will be required to inform each new employee of it in writing.

AMENDMENT AND THE GDPR

The new regulations are to settle once and for all the issue of the possibility, manner and period of processing data on an employee's state of sobriety.

According to the amendment, the information on the presence of alcohol in the employee's body may be processed (exclusively) for the purpose for which it was collected by persons who have a written authorization to process such data and may be kept in the employee's personal file for a period not exceeding 6 months from the date of its collection (unless it constitutes grounds for a penalty or evidence in court proceedings).

SOBRIETY CHECKS AND REMOTE WORK

Interestingly, the proposed changes do not differentiate between employees who work on-site and those who work remotely. It seems reasonable to argue that in the case of including remote employees in the sobriety check, the employer would have the basis for visiting the employee in order to randomly or preventively check their sobriety.

EXTENDED PERSONAL CATALOG

It should also be emphasized that the new regulations are to apply not only to employees, but also to individuals cooperating with the employer on a basis other than employment relationship and individuals running their own business. Currently, the draft is at the opinion stage and may be subject to modification. The legislative process has not yet begun.

Authors:

Magdalena Chochowska, Senior Associate, Baker McKenzie

Karolina Goździkiewicz, Associate, Baker McKenzie