In many industries, the psychophysical condition of employees has a direct impact on the safety of people and property. The work of a driver, machine operator, or an accountant making important financial decisions, requires full alertness and the ability to react correctly. For years, however, employers found themselves in a difficult position. On the one hand, they had a duty to ensure safe working conditions. On the other hand, there was a lack of clear regulations that would allow them to check whether an employee was under the influence of alcohol or psychoactive substances.
Employers were helped by the amendment of February 21, 2023, which introduced regulations in this area to the Labor Code. At the same time, the regulations set limits and establish mechanisms to protect the privacy of employees so that testing does not become a tool for excessive interference with their personal rights.
When Are Sobriety Checks Permissible and Why Is Risk Assessment Crucial?
The employer’s conviction alone is not sufficient to conduct an investigation. Article 221c §1 of the Labor Code clearly states that an investigation may only be conducted when necessary for the protection of:
• the health or life of employees or other persons, or
• the property of the employer or third parties.
This means the employer must demonstrate a real connection between the nature of tasks performed in a given position and the potential consequences of working under the influence of psychoactive substances. In practice, this is why sobriety checks are most commonly seen in:
- transport and logistics
- construction
- energy and heavy industry
- warehouses and distribution centres
- any environment involving machinery or material responsibility
At the same time, more and more companies are realizing that even remote work involving access to finances, medical data, or security systems requires caution. The legislator does not rule out such situations. However, every decision must be based on a documented risk assessment. Monitoring introduced solely to “check on employees” exposes the employer to legal liability.
How to Introduce Sobriety Testing Properly?
In practice, the implementation of testing does not begin with the purchase of a breathalyzer, but with the creation of appropriate procedures. Without a complete legal framework, testing may be challenged and fail to meet legal requirements, and thus its nature will not be binding.
The rules for testing must be included in workplace regulations or a collective agreement. If the employer is not required to have these, a notice is sufficient, but it must meet the same standards.
The document should specify:
- the group of positions subject to testing and the associated risks
- the purpose of the checks
- the type of devices used (e.g. an electrochemical breathalyser)
- the method of testing and safeguards for confidentiality
- rules for documenting and storing results
- persons authorised to process the data
Every employee must be informed of the new rules at least 14 days before they come into effect. New hires must receive the information before starting work.
If any of these stages are omitted, even a positive test result may be considered a violation of the employee’s rights, and disciplinary consequences may be overturned in court.
Testing in Practice: Balancing Safety and Respect for Dignity
The new regulations do not give the employer the right to use force or violate an employee’s personal integrity. Testing is usually carried out using a breath sample and a device meeting specific technical standards, regularly calibrated and handled by trained personnel.
The legislator distinguishes two types of checks:
- preventive checks – regular or random, covering a group of positions
- incident-driven checks – when there is a justified suspicion that an employee is under the influence of alcohol
In all cases, the test must be conducted in a manner that does not violate dignity and with discretion. It is prohibited to disclose information about sobriety, even to other team members. If the result is positive, the employee is not allowed to work. The inability to allow the employee to work stems directly from Article 221d §1 of the Labor Code. It cannot be “negotiated” due to the operational needs of the plant.
Importantly, the employee has the full right to challenge the result and request testing by the police, as well as laboratory analysis of blood or urine if needed.
When Does a Positive Result Constitute a Breach of Law?
The Act on Sobriety Education distinguishes two categories:
- state after alcohol consumption – 0.2–0.5‰ in blood (or 0.1–0.25 mg/dm³ in breath
- state of intoxication – above 0.5‰ in blood (or above 0.25 mg/dm³ in breath)
Both prevent an employee from performing work. However, only a state of intoxication may justify more serious consequences, including immediate dismissal under Article 52 LC, if the employee’s behaviour endangered the employer’s interests.
What If an Employee Refuses the Test?
The employee has the right to refuse, and the employer cannot force them to undergo the test in any way. However, refusal may result in refusal to allow the employee to work, as the employer is unable to assess their ability to perform their duties. This, in turn, means no pay for the period of incapacity caused by the employee’s fault. At the same time, the employee may at any time request the police to carry out the test.
Remote Work and Sobriety Checks – An Area Requiring Particular Caution
The regulations do not exclude monitoring in remote work, but its use in practice requires exceptionally strong justification. It is usually difficult to demonstrate that an employee working from home without contact with machinery or third parties poses a risk to life or property. In standard office work, such checks may be deemed an unjustified violation of personal rights.
Possible exceptions include:
- roles with access to security systems
- positions involving significant financial responsibility (e.g. accountants)
- regulated professions where psychophysical condition is integral to the role
Each case requires an individual, documented risk assessment.
Sobriety Checks as a Compliance Tool
Sobriety testing has become one of the key compliance instruments in organisations. However, the legal standards are demanding, and procedural mistakes extremely costly. A single incorrectly conducted test can undermine the entire process, lead to compensation claims, or even trigger data protection proceedings.
Therefore, employers should prepare themselves adequately for the implementation of the rules for conducting inspections. A well-designed procedure protects:
- the employer from liability
- employees from unjustified invasion of privacy
- third parties and property from the consequences of work performed under the influence
A sobriety-check procedure works only when it is well thought out and accepted by employees. It must not be perceived as a sign of distrust. Its purpose is far more important: ensuring safety and responsible risk management.
If you wish to introduce workplace sobriety rules in a lawful, risk-proportionate, and employee-friendly manner, we provide comprehensive support at every stage of the process. We prepare not only documents and procedures but also help build a safety culture that genuinely protects people and employer responsibility. We invite you to contact our team – together we will ensure an implementation meeting both legal requirements and business practice.