Can an employer require an employee to take a breathalyser test? | In Principle

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Can an employer require an employee to take a breathalyser test?

An employer cannot admit a drunk employee to work. But may the employer subject the employee to a breathalyser test? What other evidence can the employer use if the employee is fired and appeals to the labour court?

Poland’s Act on Sober Upbringing and Combating Alcoholism imposes a duty on an employer not to admit an employee to work when there is a suspicion that the employee has appeared for work intoxicated or has consumed alcohol during working time. When removing the employee from work, the employer must also inform the employee of the circumstances on which the employer has made that decision.

The employee’s behaviour (such as staggering or quarrelling), or the reek of alcohol, may be enough to arouse a suspicion that the employee has been drinking. If the employee consents, the employer may examine the employee with a breathalyser or sobriety test, but the employee may demand that the examination be conducted in the presence of a third party. A report on the course of the examination should be prepared indicating the symptoms and circumstances justifying the examination.

If the employee refuses to submit to a breathalyser test, the employer may not force the employee to take it. In that situation, however, the employer may demand that the police conduct a sobriety test, although the regulations do not require the employer to take that step. The employee himself may also, for example, dispute the employer’s evaluation or the accuracy of the sobriety test used by the employer (e.g. because it lacks certification), or demand that the police test his sobriety with a breathalyser or even by taking a blood sample. The employer is required to enable the employee to conduct such examination if he demands it.

An employee who works while drunk or drinks during working hours may face far-reaching consequences. Reporting to work drunk or drinking on the job exposes the employee to employment sanctions, and in addition—depending on the employee’s position and duties—even criminal sanctions. The employer is also entitled to terminate the employee’s employment contract without advance notice due to the employee’s fault. This fate awaits more specifically employees whose duties require absolute sobriety and mental and physical fitness (such as doctors, nurses and drivers).

An employee who is fired for reporting to work drunk or drinking on the job may appeal to the labour court. Then the employer will be required to prove that the grounds for terminating the employment contract were true and justified.

The primary evidence at trial will be the results of the breathalyser test conducted by the employer and the report prepared on the basis of the test. However, for purposes of employment litigation it is not necessary to prove that the employee had a specific blood alcohol content. Therefore, if a test was not conducted because the employee refused, the employer may show through any evidence it has that the employee was intoxicated, such as the testimony of witnesses or a recording from a video monitor.

The very fact of refusal to be tested may serve as evidence and influence the findings by the court. According to the Supreme Court of Poland, an employee’s refusal of a sobriety test will not improve the employee’s position, and in the event of a trial will be assessed on the basis of the court’s common sense. This means that the refusal can be held against the employee, because generally a sober employee would have no reason to refuse to take a sobriety test. The employee’s failure to verify the results of a test conducted by the employer may also be held against the employee.

Even though an employee’s duty to remain sober on the job is provided by the Act on Sober Upbringing and Combating Alcoholism and is connected with a duty by the employer not to admit a drunk employee to work, it is also worthwhile to include relevant provisions in this respect in the employer’s work rules. The appropriate specification of the organisation and order of work and the employee’s duties, for example by introducing a ban on drinking at the workplace alongside an obligation to leave the workplace promptly after finishing work could be relevant if the employee drinks at the workplace afterhours.

If the employee violates his employment duties specified in the work rules, it can have a significant impact on assessing the seriousness of the employee’s misbehaviour. Nonetheless, whenever the employer decides to terminate an employment contract without advance notice due to the fault of the employee, the employer must determine whether under the circumstances of the specific case the employee’s behaviour was a violation of his basic employment duties, and if so, whether the violation may be regarded as serious. Only a comprehensive evaluation of the matter and the evidence available to the employer will allow the employer to avoid any potential negative consequences in the ensuing employment litigation.

Agnieszka Godusławska, Employment Law Practice, Wardyński & Partners