Not to consume alcohol on the employer’s workplace (or away from them, for that matter, as long as they are on the clock) is among the most fundamental obligations of employees. Consequently, employers have the right to verify whether their staff complies with this ban. The present article looks into the details of when and how such substance checks may take place.
Employees are obliged to refrain from consuming alcoholic beverages (and abusing other addictive substances), both in the workplace (and then both on and off duty) and away from the workplace (during working hours, e.g. when on a business trip). Employees in fact must not be under the influence of alcohol (or residual alcohol from earlier drinking) when reporting to work. Employers have the right to check whether the employee complies with this duty, though such checks may only be administered if there are grounds to suspect the employee to be under the influence. Employers may not perform blanket checks across staff, nor unfounded spot checks without substantiated doubt. If the employer fails to respect this rule, employees may defend themselves by invoking the unlawfulness of the check (whereupon any evidence found during the substance check is inadmissible in court).
According to the Labor Code, employees are generally obliged to submit to checks as to whether or not they are under the influence of alcohol, upon being ordered to do so by an authorized senior employee (who must have been appointed by the employer in writing for this specific purpose). Other senior employees do not have the authority to require employees to submit to a substance test, though the employer itself of course retains the right to do so. Employees who refuse to submit to the test are in violation of a statutory obligation related to the work which they perform, and thus face the consequences anticipated by the Labor Code for such an event. What is more, if an employee refuses to submit to an examination for the presence of alcohol (be it an indicative test or an examination by a medical professional), they are treated as if they are under the influence.
What consequences may an employer draw from a positive test result? Summary dismissal will have to remain the exceptional recourse in situations in which the employer cannot be reasonably expected to retain the employee given the severity of the dereliction of work duties by the latter. Generally speaking, this may certainly be the case if an employer is found to actually consume alcohol at the workplace or if their blood contains a certain level of alcohol; however, recent Supreme Court case law shows that this does not always apply. The specific circumstances of each case will have to be taken into account – i.e., in particular, the position of the employee, their previous record with respect to the fulfillment of their work tasks, the situation in which the breach of work rules occurred, the degree of culpability of the employee, and the consequences of their breach for the employer. Ultimately, the ascertained actual blood alcohol content is decisive. This is because official opinions by forensic medical experts consider a blood alcohol level of up to 0.2 g/kg to be inconclusive (and in fact categorize up to 0.3 g/kg as irrelevant for DUI purposes).
Given the need to set out in writing which senior employee may order employees to submit to an alcohol test, but also in the interest of clear, universally recognized rules, we suggest that employers consider the adoption of a brief, easy-to-grasp internal policy which provides straightforward rules for the performance and evaluation of approximative alcohol tests (breathalyzer tests) and stipulates clear consequences for the event that an employee is found to be under the influence of alcohol. We will gladly assist you in drafting such a policy.
Labor Code, Addictive Substances Act, Supreme Court judgment 21 Cdo 4733/2015