Employers are getting closer to obtain the right of preventive sobriety testing of employees

Employers currently have no tools for preventive employee sobriety testing

The Personal Data Protection Team report that the Polish Parliament has started work on long-awaited amendments to the Labour Code to enable employers to carry out preventive sobriety checks on employees.

The Data Protection Team report that the Polish Parliament has begun work on long-awaited amendments to the Labour Code to enable employers to carry out preventive sobriety checks on employees.

Employers have been advocating for years that they should be able to carry out preventive sobriety testing of their employees without risking a breach of regulations concerning, among other things, the protection of employees’ personal data. The President of the Office for the Protection of Personal Data (UODO) has consistently indicated that information on an employee’s state of sobriety or intoxication constitutes information on the employee’s state of health and should therefore be considered as “sensitive” personal data subject to special protection. Due to the lack of provisions allowing the employer to directly obtain such data, employers carrying out sobriety checks on employees risked severe penalties for processing employees’ personal data without a legal basis, which could reach up to €20 million.

We have written about the dilemmas faced by employers in this regard, among others, here.

What will the employer be able to check?

Under the amended legislation, the employer will be able to carry out preventive sobriety checks on employees, but with certain restrictions. The employer will have to demonstrate that the introduction of such control is necessary to ensure the protection of life and health of employees or other persons or the protection of property. Moreover, the preventive examination of employees cannot cover all employees without exception, but only certain groups selected by the employer (e.g. employees from specific departments or occupying specific positions).

The examination will be able to cover not only the sobriety of employees, but also if they are under the influence of similarly acting agents, such as drugs. The testing of employees will be possible with the help of third parties, e.g. security staff, but will not be carried out with the help of laboratory methods, but only properly calibrated devices, e.g. breathalysers.

The result of the test indicating the state of alcohol consumption or intoxication will justify the refusal to allow the employee to work and the application of penalties, or even termination of the employment relationship without notice.

What employee personal data will be processed and for how long?

The employer will only be able to process information about a test that has been carried out which shows the employee to be drunk or intoxicated. A negative test report is not produced. In addition to the result of the test, the information about the test conducted will include the time of the test and the employee’s personal data, including the employee’s PESEL, health information, gender, height and weight.

As a general rule, the examination data will be kept in the employee’s personal file for one year. After that time, they will be removed from the file, unless their further retention is required, e.g. for the purposes of evidence in proceedings or if the employer imposes a warning, reprimand or fine on the employee.

What should an employer prepare for the implementation of preventative employee sobriety checks?

An employer who wishes to make use of the possibility of preventive sobriety checks for employees will have to inform the employees at least 2 weeks in advance. The manner in which the sobriety check will be carried out and the scope of employees who will be covered by it must be described in detail in the work regulations, collective agreement or notice.

It may also be necessary to update the information clause and the records of processing activities, as well as the employer’s policies. Employees who, on behalf of the employer, will be carrying out the research and drawing up the reports should have authorisations to process the data.

When will the changes come into force?

The bill was submitted to the Polish Parliament in early June 2022, and the expected date of introduction of the changes is early August 2022. The speed of implementation of the amendments is due to the need for further changes in labour law in order to adapt the legislation to the requirements of EU law. In addition to employee sobriety checks, the draft covers a number of other issues in the area of labour law.

Questions or doubts – contact our Law Firm

Should you have any questions or doubts regarding the processing of employees’ personal data, we invite you to contact our Law Firm. Enquiries can be directed to: [email protected]