Narcotics Screening in the Workplace

Quick Overview

An employee may not consume alcohol or other intoxicating substances at the workplace or during working hours. An employer may conduct a test, particularly if the employer suspects the employee is under the influence, is addressing workplace safety concerns, or has testing rules set forth in internal regulations. If an employee refuses to take a test without a valid reason, this may result in disciplinary action. However, a positive test result alone is not sufficient—the employer must assess the specific circumstances, the nature of the work, the level of risk, and the reliability of the result.

Are you unsure whether you can test an employee, issue a reprimand, or terminate their employment? Have a lawyer review your approach before taking any action that the employee could later challenge. We can assist you with labor law consultations and with establishing internal rules for alcohol and substance testing in the workplace.

Employee Obligations

Can an employer conduct random drug or alcohol tests? And how should an employer proceed if they suspect—or even have evidence—that an employee was actually “under the influence” at work or “spiced up” their day with marijuana during a break?

Every employee is obligated to ensure, to the best of their ability, their own safety and health, as well as the safety and health of individuals directly affected by their actions or omissions at work. Knowledge of the basic obligations arising from legal and other regulations, as well as the employer’s requirements for ensuring occupational safety and health, is an integral and ongoing part of an employee’s qualifications. In other words, an employee must comply with occupational safety and health ( OSH) regulations.

Among other things, this includes the obligation not to consume alcoholic beverages or abuse other addictive substances (as defined by the Act on Addictive Substances) at the employer’s workplaces, during working hours, or outside these workplaces. Similarly, employees must not smoke at the workplace or in other areas where nonsmokers are also exposed to the effects of smoking.

Exceptions to the Alcohol Ban

The ban on the consumption of alcoholic beverages does not apply to employees who work in adverse microclimatic conditions, provided they consume beer with a reduced alcohol content. Such conditions exist , for example, in steel mills, foundries, and glassworks.

Furthermore, the ban does not apply to employees for whom the consumption of these beverages is part of their job duties or is typically associated with the performance of those duties (e.g., winemakers, wine tasters, etc.).

How is testing conducted?

If an employer issues a written directive, the employee must submit to testing to determine whether they are under the influence of alcohol or other intoxicating substances. The employer conducts this test when there is suspicion, but may also implement this measure on a regular basis. This is because if a workplace accident or damage or injury is caused by an intoxicated employee, the employer may not be required to compensate for such harm. However, this must be proven in some way.

The test is typically performed using a breathalyzer; for other drugs, a simple saliva test is conducted, in which the employee places a special swab in their mouth and collects saliva on it. The saliva is then transferred to the tester, and a litmus strip indicates the presence of drugs.

If the test is positive but the employee disagrees with the result, or refuses to be tested by the employer without serious cause, they must undergo a medical blood or urine test. If the employee refuses this form of testing as well, they are presumed to be under the influence, and the associated penalties apply.

In practice, we see that employers often underestimate the importance of evidence. It is not enough to say that the employee “was acting strangely” or that “they smelled of alcohol.” Ideally, you should have a written record of the circumstances of the check, the names of those present, the test results, the employee’s reaction, and whether the employee consented to further professional examination.

Do you suspect that an employee came to work under the influence of alcohol or drugs? In such situations, it is essential to properly document the evidence, prepare a written record, and choose an appropriate course of action. We will prepare a legally sound testing procedure and related documentation for you, ensuring that your decision will hold up even in the event of a dispute with the employee.

The most common mistake employers make is automatically linking a positive test result to termination or immediate cancellation of the employment contract. However, such a course of action may not hold up in court. A bus driver who endangers passengers will be treated differently than an administrative employee with a non-detectable blood alcohol level.

What about an employee who violates the rules?

If the presence of alcohol or other intoxicating substances is detected in an employee, this does not automatically mean that the employee can be subject to immediate termination or even dismissal. Immediate termination is possible if there has been a particularly gross violation of work discipline—for example, if a bus driver transported passengers while under the influence of alcohol and caused a traffic accident.

An employer may terminate an employee’s employment if there has been a serious breach of the employee’s duties. In most cases, alcohol consumption will constitute a serious breach. However, as the Supreme Court stated, “in a situation where a blood test revealed a blood alcohol level of 0.11 g/kg in the plaintiff, which is considered inconclusive, it cannot be concluded that the employee entered the employer’s workplace under the influence of alcohol, and the termination of employment is therefore invalid.”

The case involved an administrative employee who had worked for the employer for 18 years without a single incident, a fact the court also took into account. Disciplinary action for alcohol or other intoxicating substances in the workplace always depends on the specific circumstances.

It is precisely cases like this that demonstrate that courts do not evaluate just the test result itself, but also the employee’s job position, their previously unblemished work record, the extent to which operations were jeopardized, and whether the employer had a well-documented procedure in place. Therefore, we recommend always assessing the entire case—not just a positive test result—before issuing a notice of termination or immediately terminating the employment relationship.

Are you wondering whether a written warning or notice of termination is sufficient, or whether this already constitutes grounds for immediate termination of employment? We assess each case individually based on the employee’s job position, test results, the risk to operations, and the employee’s prior conduct. This will help you reduce the risk of an invalid termination and subsequent legal dispute.

Summary

An employee must not consume alcohol or other intoxicating substances at work or during working hours, and the employer may test for their presence under certain conditions. Testing should be reasonable, predictable, and well-documented, ideally based on an internal policy or specific suspicion. A positive test result or refusal to undergo testing does not automatically result in immediate termination of employment—it always depends on the type of work, the level of risk, the test result, the evidence, and the employee’s past conduct. If an employer rushes the process or fails to provide justification, they risk an invalid termination and a labor dispute.