Random check of worker’s sobriety – legal or not?

On May 4, 2019, the Act of February 21, 2019 amending certain acts in connection with the application of the General Data Protection Regulation (Dz. Item 730), commonly referred to as the Act implementing the GDPR, came into force. According to the legal act, the processing of sensitive data by the employer (which includes information on the content of alcohol in blood) based on consent is possible only when it occurs at the initiative of the employee. Does this mean in practice that it is forbidden to carry out random checks on the sobriety of employees?

Among the commentators of changes, two separate positions clearly emerge. According to the first of them, due to the protection of personal data random checks on the sobriety of employees should be considered illegal. As justification it is indicated that on the basis of the provision of art. 9 section 1 and recital 35 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46 / EC (GDPR), information about the alcohol content in the body is given a specific category, the processing of which is possible only in specific circumstances. One of the grounds for processing data qualified for this particular category is explicit consent, which in the legal and employment reality can only be granted at the initiative of the employee. Consequently, a random examination of the sobriety of an employee should, in principle, be considered illegal.

In the analyzed issue, however, there are different voices, which as a source for conducting such type of research by the employer do not indicate the employee’s consent but the general and overriding principle of labor law, requiring the employer to provide employees with safe and hygienic working conditions. Therefore, the employer’s right to make preventive checks of sobriety results from the obligation to protect the highest human good, which is his life and health, which, for obvious reasons, in this case should be preferred to the employee’s dignity. It seems even more reasonable to conduct a random check on the sobriety of employees with reference to general provisions on the employer’s responsibility for the health and safety at work, in which conducting this type of research is justified by the type of work provided by employees or specific features of the workplace itself. We are talking mainly about production plants, transport companies, work on machines or work at heights and in the case where the employer has accidents at work involving employees under the influence of alcohol. In such a situation, the employer may not be denied the right to conduct random employee inspections. It should be noted here that the employer should include the possibility and detailed rules for such control in the work regulations.

The entry into force of the act implementing the GDPR and the comments made in this connection questioned the issue of the legality of conducting random checks on the sobriety of employees by the employer. Although the literal interpretation of the provisions can in fact lead to such conclusions, it should not be forgotten that a balance should be maintained between the protection of personal data and the protection of other legally protected goods, such as health and life of employees. For this reason, it should not be a priority to exclude the possibility of random verification of the sobriety of employees with the absolute obligation of each employer to provide employees with safe and healthy working conditions, in particular where it is justified by the type of work or the specifics of the workplace.