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Sobriety testing in the workplace - new legislation

The Health Minister's regulation defining, among other things, the conditions and methods for employers to test for the presence of alcohol in an employee's body has been directed for promulgation. The regulations will come into force on February 21. An employer will not be able to require his subordinate to take such a test in every situation. Sobriety testing will be permitted only if it is necessary to ensure the protection of life and health of employees, other persons or the protection of property. If the test reveals the presence of alcohol above 0.2 per mille, the employer may not allow such an employee to work. 

The new Labor Code regulations provide for inspection in two modes: preventive and "in case of reasonable suspicion of the employer." In addition, thanks to the amended law, an employee hired under both an employment contract and one hired under a civil law contract (such as a contract of mandate or B2B) will be able to be inspected. 

In detail, the conditions and methods for conducting an employer's sobriety check on an employee are specified in a regulation of the Minister of Health. According to its wording, tests for the presence of alcohol include an exhaled breath test (which should be performed first) or a blood test. 

The exhaled air test will be able to be conducted by such methods as:

  • infrared spectrometry,
  • electrochemical oxidation.

For both methods, an electric device with a mouthpiece must be used, which must be replaced each time before measurement and its packaging opened in the presence of the person being tested. 

A blood test, on the other hand, involves at least two laboratory analyses: by gas chromatography with a flame-ionization detector and spectrophotometric method using alcohol dehydrogenase (an enzymatic method), or by gas chromatography with a flame-ionization detector using two different analytical conditions. The regulation also specifies how the protocol for the exhalation analyzer and blood test should be drawn up. 

In addition to alcohol, an employer will be able to have an employee tested for being under the influence of drugs acting similarly to alcohol, i.e. opioids, amphetamines or cocaine, among others. In such cases, blood and urine tests will be performed, but also using methods that do not require a laboratory test.