According to Section 102 of the Labor Code, employers are obliged to create a safe and non-hazardous working environment and working conditions by appropriate organization of safety and protection of health at work and by taking measures to prevent risks. According to Section 103 of the Labor Code, employers are also obliged to look for risks, evaluate them and take measures to eliminate them.
The Labor Code explicitly prohibits employees from entering the employer’s workplace under the influence of alcohol and other addictive substances and consume alcohol and other addictive substances at the workplace. It prohibits employees from doing so even outside the employer’s workplace, if this were to be done during working hours. Exceptions are employees in so-called “hot operations” and employees where the consumption of alcoholic beverages is a part of the performance of work tasks (for example, sommeliers). The stated restrictions stem from Section 106 par. 4 let. e) of the Labor Code.
Employers should therefore actively check whether employees are under the influence of alcohol or other addictive substances when they arrive at the workplace and whether they consume alcohol or other addictive substances at the workplace, resp. during working hours even outside of it.
How to ensure such control?
This question is partially answered by Section 106 par. 4 let. i) of the Labor Code which provides that the employee shall be required, on the instructions of an authorized lead employee designated in writing by his employer, to determine whether he or she is under the influence of alcohol or other addictive substances.
The attentive reader may have noticed that the employee is obliged to take the test (orientation breath test, etc.) only if the instruction is addressed to him by an authorized lead employee designated by the employer in writing. In this case, we recommend that such an employee be designated by an internal regulation, but there is nothing to prevent an employee from being authorized to do so only for a specific case. The authorized lead employee performing the inspection must be able to prove to the inspected employee that he or she has been designated for such an inspection. Of course, the employee can also be invited to a breath test by the employer directly.
How to proceed if the orientation breath test is positive?
The breath test is really only indicative and the employer should therefore ensure that the presence of alcohol is detected by a professional. To this end, the employer has the statutory right to invite the employee to undergo a professional medical examination, under the conditions set out in Section 20 of Act No. 65/2017 Coll. on the protection of health from the harmful effects of addictive substances.
Another possibility is to require the employee to undergo an extraordinary medical examination according to Section 56 letter a) of Act No. 373/2011 Coll. on the specific health services.
What if the employee refuses to submit to the inspection?
If an employee refuses to undergo the indicative breath test, you should first warn him or her that this is a breach of his or her job responsibilities. In such a case, if the intensity of the breach is sufficient, he or she may be dismissed pursuant to Section 52 letter g) of the Labor Code. The intensity of the breach depends on the specific circumstances of the case. For example, a breath test of alcohol with a result of 0.23 ‰ will not establish a sufficient intensity of breach of work duties for the procedure according to the above provision even for a shift manager in a steelworks operation where there is an increased risk of damage to health. In other words, the presence of alcohol in the blood of an employee does not in itself automatically establish the possibility of giving notice to the employee or immediately terminating his or her employment.
If an employee refuses to undergo a professional medical examination in accordance with the Act on the protection of health from the harmful effects of addictive substances, he or she is treated as if he or she were under the influence of alcohol or another addictive substance.
If an employee refuses to undergo an emergency medical examination under the Act on the specific health services, he or she is not treated as if he or she was under the influence of an addictive substance. However, as in the first case, there is a breach of work duties relating to the work performed by the employee.
Disputes over the invalidity of termination of employment statistically end to the detriment of employers. This is due to many factors, the main ones being the employer’s poor procedure and the lack of evidence of a breach of work duties by the employee.
We therefore undoubtedly recommend that you, as employers, proceed with the utmost caution in these cases and try to record every breach of work duties, whether by documents, witnesses or otherwise.