Among the draft amendments to the Labour Code, which in recent weeks have been submitted to the Government Legislative Centre, there is also a draft act amending the Labour Code act and the act on Upbringing in Sobriety and Counteracting Alcoholism. The impulse to introduce changes in the area of alcohol testing of employees is the current legal regulation, which de facto makes it impossible to perform such tests, as well as the demands of employers themselves, pointing to the annual increase in the number of accidents at work caused by the intoxication of employees.
The essence of the solutions provided for controlling the sobriety of employees
ot only is there no mechanism in the current legal order explicitly allowing employers to carry out sobriety checks on employees before allowing them to work, the situation is further complicated by the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council 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 (GDPR).
Particularly problematic is the lack of legal grounds for not allowing employees who are suspected of being under the influence of alcohol to perform their work. The employer has only the right to notify the appropriate departments, which, within the scope of their powers, may check the employee’s state of sobriety. This means that the employer may not, apart from calling the appropriate departments, effectively take any steps in this direction.
The proposed regulation, which will enable employers to conduct random checks on employees for the presence of alcohol or drugs similar to alcohol, seems to be a response to this situation.
What does random sobriety testing look like under the proposed legislation?
The bill provides for the possibility to control the sobriety of employees, provided that certain prerequisites are met. The control will be possible only in the following situations:
- it is necessary to ensure the protection of life and health of workers or other persons or the protection of property;
- and the testing itself will be carried out only by means of methods which do not require a laboratory test, using an instrument having a valid calibration or calibration certificate.
Obligations of the employer
According to the draft, the employer who wants to conduct random checks on employees will be obliged to:
- the introduction in the work regulations of rules for carrying out inspections;
- the determination of the group of employees covered by the audit;
- and to determine the manner in which it is to be carried out.
In the event that the presence of alcohol is confirmed as a result of an inspection or in the event of a justified suspicion that an employee is intoxicated, the employer will be obliged to refuse to allow such employee to work. Additionally, both parties to the employment relationship will be able to demand that the employee’s state of sobriety be re-examined by an authorised body.
Sobriety checks will also be available for persons who are parties to contracts other than employment contracts.
Assessment of projected changes
The proposed changes in the area of sobriety checks for employees can certainly contribute to an overall improvement in the safety of all employees by minimising the number of accidents at work due to intoxication and excluding situations in which an employee is allowed to work in a state indicating the presence of alcohol in their body.
However, the introduction of this control mechanism remains an open question – at this point it is not entirely clear when the introduction of sobriety checks can be considered necessary for the life and health of employees. What specific conditions must occur for an employer to be able to use this option? And finally, how would an employer demonstrate the existence of these circumstances in the event of a possible inspection? Let us hope that these and other doubts will be resolved in the further legislative process until the regulation is permanently introduced into Polish law.
We will keep you posted on the blog about the progress of the project and significant changes to its content.
Karolina Barałkiewicz-Sokal, attorney-at-law
Paula Staszak, trainee attorney-at-law