Employee alcohol testing and GDPR

Employers have no right to alcohol test their employees on their own, and that includes random testing – this is the position of the President of the Personal Data Protection Office (UODO) in response to the amendment of the Labour Code that became effective on 4 May 2019 (full text of the position is available HERE).

Why the doubts?

The subject of permissibility of alcohol testing of employees is not new. The discussion whether protection of privacy and personal rights of employees should be more important than the issues such as safety has been going on for years. Those doubts came up again after the Labour Code had new Article 22^1badded. In accordance with that Article, the basis for processing of special data category, including also health information, may be consent of the employee, but only when provision of that data is initiated by the employee – which means that it cannot be the initiative of the employer, which was generally the case before in alcohol testing carried out by employers. Is the knowledge whether an employee is sober a health information? In the opinion of the President of the UODO – it is.

How can workers be tested for alcohol in the context of the UODO President’s opinion?

The President of the UODO found that the aforementioned amendment had no material impact on the rights and obligations of employers specified in Article 17 of the Act on Upbringing in Sobriety and Counteracting Alcoholism, as in the opinion of the authority in this scope that Act is exhaustive and constant – employee alcohol testing should be carried out on the condition of meeting the following two requirements jointly:

1. Employer has a justified suspicion that the employee arrived at work after consuming alcohol or consumed alcohol at work,
2. Employee alcohol test is carried out by authorised body appointed to protect public order (e.g. police), and blood sampling is done by a person with appropriate professional qualifications.

Regardless of the stipulations and interpretation of data protection laws, the existing form of the aforementioned provision, in the opinion of the UODO, excludes the permissibility of random preventative alcohol testing of workers by employers. In the opinion of the President of the UODO “employee alcohol testing cannot be treated as:

• a form of monitoring of work performed by the employees, referred to in Article 22 (3) § 4 of the Labour Code,
• an activity necessary to ensure safe working conditions for all employees,
• justified by legitimate interest of the employer.”

Could employees be tested with their consent?

In the context of the UODO President’s opinion presented above, but also prior case law, you should be very careful in your approach to testing employees with their consent and at their initiative (when, for example, they want to “prove” that they are sober), in particular when the test result would constitute basis for further steps taken towards the employee. Even in recent ruling of the Supreme Court of 4 December 2018, case file number: I PK 194/17, the Supreme Court stressed that “in every situation the entity authorised to carry out alcohol testing is a body appointed to protect public order. Performance of alcohol testing by the employer or its designee may even be deemed to constitute circumventing of Article 17. 3 of the Act on Upbringing in Sobriety, even when employee gives their consent”.

Considering the above, the position of the UODO President must be applied in the development of the employee alcohol testing procedures until possible future law changes.

Author:
Natalia Wojciechowska – legal adviser