Amendment to the Labour Code — control of employee’s sobriety

The amendment to the Labour Code, adopted by the Sejm, introduces new regulations concerning the possibility for the employer to check the sobriety of employees. However, a sobriety test of an employee can only be carried out when it is necessary to ensure the protection of life and health.

Employee’s sobriety test — new rules

The amendment to the Labour Code adopted by the Sejm provides that the employer will be authorised to check the sobriety of the employee, but only on the condition that such control is necessary to ensure the protection of life and health of employees, other persons or the protection of property.

The draft law amending the Labour Code provides for two control modes:

• preventive control of sobriety or control of workers for the presence in their organisms of alcohol and similarly acting substances,
• control in the event of a reasonable suspicion of the employer.

Both modes are intended to prevent an employee under the influence of alcohol or a similarly acting substance from performing their duties, i.e. they allow the employer not to admit an intoxicated worker to work.

The new regulations also provide for the possibility of carrying out sobriety checks of employees working under civil law contracts, including contracts of mandate, and employed under B2B contracts.

Sobriety test in regulations or collective labour agreement

Control of employees’ sobriety will have to take place in accordance with the provisions of workplace regulations adopted by the employer or the collective labour agreement. In the absence of both documents, the employer has to prepare a special notice.

During the control, the employer will have to ensure that dignity and other personal interests of the employee are respected.

Methods of employee’s sobriety testing

The sobriety check under the new rules is to be carried out using:

• methods that do not require laboratory testing by means of a device with a valid document confirming its calibration.

In addition, at the request of the employer or the employee not admitted to work, a sobriety test will be carried out by an authorised law enforcement authority, using:

• methods that do not require laboratory testing,
• laboratory methods (blood test) — e.g. if an employee refuses to test with a non-laboratory method or questions its result.

If the test reveals over 0.2 blood alcohol level, the employer will not admit such an employee to work. The employer must also provide the employee with such information.

If the test shows less than 0.2 blood alcohol level, the employee may perform their duties.

The proposed regulations are to enter into force 14 days after their publication in the Journal of Laws.

Control of employee’s sobriety — current rules

Under the current legislation, the employer may:

• process information on the presence of alcohol or similarly acting substance in the employee’s body only with the employee’s consent;
• carry out a sobriety test of the employee provided that:
• the examination is carried out at the request of the head of the employment establishment, the person authorised by the head or an employee who is reasonably suspected of having consumed alcohol at work or appeared at work after the consumption of alcohol, and
• the examination of the employee’s sobriety is carried out by an authorised law enforcement body (police), and the blood collection procedure is carried out by a person with appropriate professional qualifications.

Both of these conditions must be met concurrently, which means that now the employer cannot on its own control workers for the presence of alcohol or similarly acting substances in their organisms. It is worth remembering that the obligation to maintain sobriety at work is a fundamental employee’s duty.

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