Even a small amount of alcohol consumed may impair vision, concentration, reflexes, and the ability of an employee to make unpredictable and erroneous decisions.

The inability of employers to monitor the state of sobriety of their employees, particularly in industries such as transport or construction, can lead not only to financial or reputational damage but also, in extreme cases, to human tragedy and criminal liability.

The good news for most employers is the preparation and publication by the Ministry of Development, Labour and Technology of a draft act amending the Labour Code act and the act on upbringing in sobriety and counteracting alcoholism. The introduction of provisions on the possibility of checking the sobriety of employees by the employer has been advocated by many circles, in which work safety and good psychophysical condition of the employee are of key importance.

In the current legal status, the Act on Upbringing in Sobriety and Counteracting Alcoholism is silent on the possibility for the employer to carry out a sobriety test of an employee. However, it allows the employer and the employee to order a sobriety test by an authorised body appointed to protect public order (the Police). An employee may request a breathalyser test if he or she wants to prove his or her sobriety, and an employer who has refused to allow an employee to work is obligated to allow the employee to prove his or her sobriety.[1] Moreover, under the current wording of the Labour Code,[2] an employer has the right to process so-called “sensitive data,”[3] including data on the employee’s state of health (which also includes the employee’s state of sobriety), only if the transfer of such data is initiated by the employee. It is therefore hardly surprising that the provisions in question were not more widely used in practice – an employee who was under the influence of alcohol was not interested in providing his employer with information that would expose him not only to dismissal from work and lack of remuneration[4] but also to disciplinary sanctions including the possibility of disciplinary dismissal.

The draft law introduces solutions allowing employers not only to carry out preventive checks on the state of sobriety of employees but also to check for the presence of drugs acting similarly to alcohol in employees’ bodies (opioids, amphetamine, and its analogues, cocaine, tetrahydrocannabinoles, benzodiazepines).

The employer will be able to check workers using methods that do not require a laboratory test only in justified cases:

  • if it is necessary to ensure the protection of the life and health of employees or other persons,
  • in order to protect the employer’s property.

Among the obligations imposed on the employer will be:

  • determining the group or groups of employees covered by the inspection and the manner in which it is to be carried out in the collective agreement, work regulations, or in a notice,
  • informing employees about the introduction of an inspection no later than 2 weeks before carrying it out
  • informing a newly employed employee in writing about the inspection before allowing him/her to work.

The employer will also be obliged to keep in the employee’s personal file for 6 months information on the presence of alcohol or any other drug similarly to alcohol in the employee’s system, and the case of the application of a disciplinary penalty until the penalty is considered null and void.

In relation to an employee who came to work in the state after using a substance having a similar effect to alcohol or who used a substance having a similar effect to alcohol during work – the employer, in addition to the penalties of a warning and reprimand, will also be able to apply a fine.

The draft act has been sent for consultation. The planned date of adoption of the draft has been set for the third quarter of 2021.

[1] Judgment of the Supreme Court of 11 April 2000 in case ref. I PKN 589/99 – Judgment
[2] Provision of Article 22 [1b] § 1 of the Act of 26 June 1974 – Labour Code
[3] Provision of Article 9 of the Act of 10 May 2018 on personal data protection
[4] Provision of Article 80 sentence 1 of the Act of 26 June 1974 Labour Code