In a situation where an employer suspects that an employee is performing their duties while intoxicated and the employee must be suspended from work, the employer must take into account occupational health and safety as well as the principles of personal data protection.
An intoxicated person at the workplace is a danger to themselves and others. Often, intoxication can lead to conflicts and occupational accidents. Therefore, it is important for the work organisation rules to set out the prohibition of working while intoxicated, as well as the procedure for the establishment of intoxication.
Rights and obligations of employers
The right of employers to check the intoxication of employees stems from the Employment Contracts Act and the Occupational Health and Safety Act. Pursuant to clause 15 of subsection 1 of § 13 of the Occupational Health and Safety Act, an employer is required to suspend an employee from work if they are under the influence of alcohol, narcotics, or toxic or psychotropic substances.
Pursuant to subsection 2 of § 13 of the Occupational Health and Safety Act, an employer has the right to establish more stringent occupational health and safety requirements in the enterprise than those prescribed by legislation and verify compliance to these requirements. The prohibition of intoxication and the use of psychotropic substances is absolute. Pursuant to subsection 2 of § 2 of the Occupational Health and Safety Act, occupational safety is a system of work-related organisational measures and technical means to provide such a state of working environment which enables an employee to work without endangering their health. According to the explanations of the Data Protection Inspectorate, the use of a breathalyser can be considered both a work-related organisational measure and a technical resource.
Even if such measures can be considered occupational safety requirements, it must be taken into account that any health check (including the use of a breathalyser) infringes on a person’s right of self-determination and leads to the processing of sensitive personal data. Sensitive personal data may be processed only in the cases set out in law or with the consent of the person, but not to verify the performance of the contract (instructions of the Data Protection Inspectorate).
How to establish an employee’s state of intoxication?
Pursuant to subsection 2 of § 14 of the Occupational Health and Safety Act, it is prohibited for an employee to work while under the influence of alcohol, narcotics, or toxic or psychotropic substances. In order to comply with the requirements of occupational health and safety, it is important to address during instruction, among other sources of danger, working while intoxicated and its potential consequences.
In order to establish an employee’s state of intoxication, it is possible to use a breathalyser with the employee’s consent, to send the employee to a medical examination or to include witness statements and accounts in the assessment. However, even when the employee agrees to use the breathalyser, the result may not be able to be used as evidence in a later dispute. It may also happen that the employee comes to work, but refuses to use the breathalyser or go to the doctor. In such cases, it is possible to include witnesses in the assessment of the employee’s state of intoxication, because more important from the blood alcohol content is the identification of whether the employee’s usual physical or mental functions have changed or are disturbed as a result of alcohol consumption, which prevents them from working efficiently and safely.
A list of signs indicating intoxication is available in the regulation of the Minister of Social Affairs: ‘A list of signs of a state of intoxication and the manner in which the exhibition or non-exhibition of said signs’.
Signs that indicate potential intoxication are:
- delayed reactions;
- impaired speech;
- disturbances in the perception of time, person and place;
- state of consciousness;
- memory disorders;
- coordination disorders; and
- behavioural disorders.
In addition to the above, signs indicating intoxication may include the smell of alcohol on the person’s breath caused by alcohol consumption or, in the case of intoxication caused by the use of intoxicating substances, abnormalities in the appearance and look of the eyes.
Suspension of an intoxicated employee from work
Pursuant to §§ 13 and 14 of the Occupational Health and Safety Act, employers have a legal obligation to suspend an employee from work if they are under the influence of alcohol, narcotics, or toxic or psychotropic substances, but it is not clarified what is meant by intoxication.
In its final decisions, the Labour Dispute Committee has accepted statements and letters of explanation of other employees as evidence in establishing an employee’s intoxication. In addition, the Labour Inspectorate has recommended that employers prepare a free-form written report on the establishment of an employee’s intoxication. The written document should include the place, date and time, and the employer must explain the circumstances that led them to conclude in their visual assessment that the employee exhibited signs of intoxication. The document should be signed by the person who prepared it and by witnesses who had contact with the intoxicated employee.
Processing of personal data
From a data protection point of view, where possible, the employer involving other employees in the assessment of an employee’s intoxication should be preferred to sending the employee to a doctor. The employer can include in the intoxication assessment process first and foremost those employees who have come into contact with the intoxicated employee and have seen the situation. Unlike employees of a company, doctors process sensitive personal data pursuant to law and they have a legal obligation of confidentiality. The Data Protection Inspectorate is of the opinion that an employer specifically summoning other employees is not in accordance with the Personal Data Protection Act, because the employer does not have grounds to distribute sensitive personal data about an (intoxicated) employee based on subsection 2 of § 14 of the Personal Data Protection Act. According to the Data Protection Inspectorate, the Personal Data Protection Act would enable employers to use as witnesses those employees who experienced the situation upon coming into contact with the intoxicated employee, without the employer having specifically ordered them to do so (instructions of the Data Protection Inspectorate).The employer may include the working environment representative as a witness, because the latter’s duty is to ensure a safe working environment for every employee.
From a data protection point of view, establishment of an employee’s intoxication is the processing of the employee’s health data and may only be done with the employee’s consent or in cases provided by law. The regulation of personal data processing in employment relationships stems from Article 88 of the General Data Protection Regulation, which stipulates that Member States may, by law or by collective agreements, provide for more specific rules to ensure the protection of the rights and freedoms in respect to the processing of employees’ personal data in the employment context, in particular for the purposes of the recruitment, the performance of the contract of employment, including discharge of obligations laid down by law or by collective agreements, management, planning and organisation of work, equality and diversity in the workplace, health and safety at work, protection of employer’s or customer’s property and for the purposes of the exercise and enjoyment, on an individual or collective basis, of rights and benefits related to employment, and for the purpose of the termination of the employment relationship.
The Data Protection Inspectorate defines intoxication as a health condition, which is considered sensitive personal data. Therefore, the establishment of intoxication can be considered as personal data processing, and checking intoxication for the purpose of performing the employment contract is not allowed. At the same time, employers have a legal obligation to suspend an employee from work if they are under the influence of alcohol, narcotics, or toxic or psychotropic substances in order to ensure a safe working environment, and therefore they have the right to process personal data to a certain extent (see more on the website of the Data Protection Inspectorate).
Considering the above, it is important to take into account the provisions of the Personal Data Protection Act in employment relationships and to process the health data of employees for a specific purpose.
Extraordinary cancellation of employment contract by employer for reason arising from employee
If an employee has been at work in a state of intoxication in spite of the employer’s warning, the employer may cancel the employment contract extraordinarily on the basis of clause 4 of subsection 1 of § 88 of the Employment Contracts Act. The law does not stipulate formal requirements for the warning. The warning may be verbal, in a form reproducible in writing or written, but it is advisable to prepare the warning in writing in order to avoid later disputes. In the event of a dispute, the employer must prove that the employee has been warned and indicate their violations. Prior warning is not a prerequisite for cancellation if the employee cannot expect it from the employer due to particular severity of the breach of the obligation or for another reason pursuant to the principle of good faith. In the event of extraordinary cancellation of the employment contract, it is important to note the employer’s obligation to give reasons. Cancellation shall be justified in a format which can be reproduced in writing.
One of the most important steps an employer can take in the workplace to prevent drug use is to raise employee awareness by sharing information and carrying out relevant training.
Preparing a drug policy is a good way to reduce the health and social damage caused by drug use. This requires the following:
- identifying a drug problem
- choosing measures that are as efficient as possible
- applying the chosen measures and monitoring and assessing their effect
In order to prevent drug use, employers should:
- make it clear in the internal work procedure rules that working under any form of influence, including with residual effects, is prohibited; and
- make an agreement with the employees on how to act if there is suspicion of drug use. Issues related to drug use should be treated like any other health issues.
If, as an employer, you have noticed an employee’s problem, you can offer them the following solutions:
- Counselling at work or outside the workplace with a specialist. The goal is to provide the employee with options that are the best for their recovery. All confidentiality requirements must be taken into account when addressing the issue with the employee.
- Maintaining their job during treatment, which can play a major role in the employee’s recovery, as it provides them with a sense of stability.
At the workplace level, the staff as a whole should analyse the following circumstances related to internal organisation:
- Which circumstances within the institution may indicate issues related to drug use?
- How to collectively respond to drug use? The established rules apply to the entire staff.
- The gathering culture with colleagues and clients. For example, it is not necessary to organise gatherings with a higher likelihood of alcohol and drug use. Instead of evening gatherings at the bar, you could organise an afternoon get-together on a health trail.
Every employer can keep themselves informed about the available intervention options and share that information with the entire staff.
Additional information and help is available on the following websites: