Sobriety at Work

What can an employer do if an employee reports to work drunk?

First of all, the employer must not allow an employee to perform their job while drunk, including an employee who is unfit for work as a result of consuming alcohol before coming to work or an employee who has drunk alcohol while at work.

This obligation not only comes from the employer’s duty to ensure the employees’ health and safety at work (Article 94 section 4 of the Polish Labour Code, Article 207 of the Polish Labour Code), but also directly from the Act on Upbringing in Sobriety and Counteracting Alcoholism (Article 17 section 1).

It is sufficient for the employer to have a reasonable suspicion that an employee has consumed alcohol at work or prior to reporting to work. A reasonable suspicion of being inebriated or under the influence of alcohol might include the employee’s behaviour or the smell of alcohol. The circumstances underlying the employer’s decision not to allow the employee to work must be clearly presented to the employee.

What does a state indicating the use of alcohol mean? What does intoxication mean?

As far as the alcohol level at which an individual is considered to be legally impaired is concerned, Polish law distinguishes between a state indicating the use of alcohol (stan po użyciu alkoholu) and a state of insobriety (nietrzeźwość).

A state indicating the use of alcohol is where the content of alcohol in the body is or leads to:

• a blood alcohol content (BAC) between 0.2 and 0.5 permille (‰); or
• a breath alcohol content (BrAC) between 0.1 and 0.25 mg of alcohol in 1 cubic decimetre (1 litre) of blood.

Please note that in many countries, including Poland, BAC is measured and reported as grams of alcohol per 1000 millilitres (1 litre) of blood (g/1000 mL). In the UK, for example, BAC is reported as milligrams of alcohol per 100 millilitres of blood (mg/100ml).

Intoxication is where the content of alcohol in the body is or leads to:

• a blood alcohol content (BAC) above 0.5 permille (‰); or
• a breath alcohol content (BrAC) above 0.25 mg of alcohol in 1L of breath (250 micrograms of alcohol per litre of breath).

Can the employer test alcohol content using an evidentiary breath testing device (EBT), commonly referred to as a breathalyser?

Under the current laws, employees cannot be forced to take drug and/or alcohol tests. Pursuant to Article 17 section 3 of the Act on Upbringing in Sobriety and Counteracting Alcoholism, at the request of the employer or the employee concerned, an alcohol test may be administered by a relevant law enforcement authority (the police), or in the case of blood tests – by a qualified person (a nurse).

The main reason behind the current legal framework is that alcohol tests administered by employers may not be reliable given the variety of different devices used and producing different readings, such as sobriety testing machines, breath test machines or breathometers or breathalysers, etc. This may make testing unfair to the employee, so administering objective tests by an external agency would help eliminate any such uncertainty.

Are there any changes expected in terms of sobriety testing at work?

There is a new bill before the Polish Parliament to amend the Labour Code in connection with employee sobriety testing rules. The most important changes include:

1. for the first time, a proposal has been lodged to regulate employee testing rules not only to test whether an employee has consumed alcohol, but also other substances of similar effect (it may be concluded that it includes drugs, designer drugs, etc.).
2. based on the amendments, an employer could administer alcohol tests to employees. The rules on taking such tests and the testing procedure (the types of devices used, the duration of a test, testing frequency etc.) should be determined in a collective agreement or in the workplace regulations (and if an employer is not required to introduce workplace regulations, then by means of a workplace announcement).
3. the proposed amendment contains the basis for the processing of personal data of employees, included in the results of tests administered by the employer. In accordance with the recommendation of the president of the Polish DPA, employers will have legal grounds to process (and store) personal data concerning an employee’s sobriety.
4. To avoid any doubt, under the new rules, accredited calibration/verification certificates will be required for all test devices (breathalysers).

Given the increasingly prevalent view that employers should be able to test their employees for alcohol and other intoxicants (drugs), under certain conditions, regulations concerning employee testing have been proposed in the draft amendment to the Labour Code.