In an era of increasingly restrictive requirements related to the need to maintain appropriate working conditions, one of the fundamental issues remains the monitoring of employee sobriety. This topic is particularly often raised in industries such as transport, where strict regulations are in place to increase road safety. In this article, we will discuss the most important rules and requirements related to sobriety checks at work in 2024 – read on!
In Poland, sobriety control in the workplace is regulated by the Labour Code. According to the amendments introduced in 2023 (Articles 221c–221f, 221g, and 221h), an employer has the right to conduct sobriety tests on employees (including those working under civil contracts) if necessary to ensure the protection of life, health, or property.
The new regulations allow, among other things, for preventive sobriety checks at work, i.e., checks on employees who do not show visible signs of intoxication. It should be emphasized that, in accordance with paragraph 2 of Article 221c, sobriety checks must be carried out in a manner that does not violate the dignity and personal rights of the employee. It is also worth adding that the employer has the right to process the necessary data (date, exact time, test result) and store it in the employee's personal file for up to one year from the date of the test.
An employee who is intoxicated risks serious consequences not only for themselves, but also for their employer – for example, financial losses. In some situations (regulated by civil or criminal law), the employer may be held liable for accidents caused by employees who performed their duties under the influence of alcohol or other psychoactive substances. As a result, this may entail the payment of compensation or contractual penalties (e.g., for delays in the execution of transport orders).
What is the situation from the employee's perspective? If a sobriety check at work reveals that an employee's blood alcohol content is equal to or higher than 0.2 per mille, the first consequence is that they will not be allowed to continue performing their duties. The period of compulsory leave due to intoxication is not included in the remuneration. In accordance with the applicable regulations, performing work in a state indicating alcohol consumption (0.2 to 0.499 per mille) or in a state of intoxication (from 0.5 per mille) may result in consequences such as:
Sobriety checks at work are an issue that must be sanctioned in internal company regulations, i.e., in the work regulations or collective agreement. In standard cases, the law allows for the testing of employees' sobriety only using methods that do not require laboratory testing. In practice, such testing is carried out using a breathalyzer, which must have a valid calibration certificate.
In special cases, provided that the test is performed by authorized services, sobriety checks at work may be carried out using a laboratory test, such as a blood test. This is the case, for example, when it is impossible to perform the test using standard methods, i.e., a breathalyzer, and also at the request of the employee.
One of the employer's responsibilities is to ensure safe working conditions, and sobriety checks are one of the key measures to prevent potential accidents. The most important advice for employees is to act responsibly – never drink alcohol before or during work. This approach will protect you, your colleagues, and everyone else around you.
The Labor Code is the basic legal act containing the applicable provisions on sobriety checks. The aforementioned amendments give employers greater opportunities to check employee sobriety.
New regulations concerning sobriety checks at work will come into force on February 21, 2023.
An employer has the right to conduct a sobriety check on an employee, both in the event of reasonable suspicion that the employee is under the influence of intoxicating substances and as part of preventive measures. However, it should be remembered that preventive checks must meet certain conditions and cannot be carried out arbitrarily.
The rules for conducting inspections must be clearly defined in the work regulations or collective agreement. They should include, among other things, information such as the frequency of inspections and the groups of employees who will be covered by them.
The employer is required to inform employees of the planned inspection at least two weeks in advance.
The consequences of intoxication at work can vary – the decision is up to the employer. The employee may receive a warning or reprimand, but the consequences can be much more severe – disciplinary termination of the contract may occur due to a so-called serious breach of employee obligations.
A day on which an employee appears at work under the influence of alcohol or other intoxicating substances may be classified as an unjustified absence without the right to remuneration.
If the test confirms the presence of alcohol, the employer may store information about the sobriety test for up to one year from the date it was performed. The documentation may include information such as the date, exact time of the test, and its result. The data should be stored in section E of the employee's personal file.
In the context of workplace sobriety testing, both employees and employers have specific rights and obligations that must be observed to ensure the legality and transparency of all activities. Sobriety testing must be conducted with respect for the employee's privacy. The employer may not violate the employee's dignity during the test, and the test results are classified as sensitive data and may not be disclosed to third parties.
Employees have the right to be notified in advance of the introduction of preventive sobriety checks. Information about such checks must be included in the work regulations or collective agreement, and the employer should give at least two weeks' notice of the checks.
If there are any doubts about the result, the employee may request a re-examination or an examination by an independent body, such as the police. The employee also has the right to inspect the results of the examination and to receive a copy of the documentation.
If an employee questions the results of a test conducted by their employer, they have the right to request an independent test conducted by the police, e.g., using a breathalyzer, or a laboratory blood test. A report is drawn up based on such a test, which is then provided to the employee and employer.
Breathalyzers, most commonly electrochemical ones, are used to check sobriety. Infrared and semiconductor breathalyzers are also used.
Breathalyzers used for sobriety testing at work must have a valid calibration or verification certificate confirming their correct operation. Calibration should be performed regularly, in accordance with the manufacturer's recommendations, to ensure the reliability of the results. The device should meet the technical standards specified for this type of measuring equipment.
The Regulation of the Minister of Health of February 16, 2023, on testing for the presence of alcohol and substances similar to alcohol in the body of an employee contains a detailed description of all the most important procedures related to performing sobriety tests and drawing up the required protocol. The regulation also includes a list of other intoxicants whose possible presence may be verified in employees. The following substances are listed:
At the request of an employee or employer, a sobriety check may also be carried out by the police. This usually happens when it is not possible to use a breathalyzer or when an employee refuses to take a breathalyzer test.
In such a situation, the officers draw up a report containing the exact time, date, and result of the test.
