Back to drinking after Dry February? Definitely not at work
Dry February is over, but not at work. There, abstinence continues regardless of the calendar – and it is not a voluntary challenge, but a rule laid down by law. What are the implications for employees and employers?
Employees are prohibited from consuming alcohol in the workplace and are not allowed to enter the workplace under the influence of alcohol during working hours. Employers have a duty to ensure a safe working environment and prevent risks, so they must ensure that these rules are strictly observed and enforced.
If there is reasonable suspicion that an employee is under the influence of alcohol, they are obliged to undergo a test at the instruction of an authorised executive. It is essential that the employee authorised to issue such an instruction is clearly identified and that a process is in place to follow in such situations. The test may take the form of a preliminary breath test or a professional medical examination. It is important to bear in mind that, although there are a number of means of detecting the presence and, where applicable, the amount of alcohol in an employee's body, only the result of a measurement carried out using an approved breathalyser can be used as evidence in a possible dispute with the employee (while it should not be used as the sole evidence).
We recommend that a report be written for each test performed. If the preliminary test indicates alcohol influence, the employee should be asked to undergo a specialist medical examination (and subsequently undergo it). It is advisable to have a medical facility secured in advance where a specialist examination will be performed. The question of reimbursement of the costs of such an examination is also important: in practice, the costs of a specialist examination are paid by the employer at the time of its performance. However, if the result is positive, the employee is obliged to reimburse the employer for the costs incurred.
If an employee refuses to undergo a specialist examination, regardless of whether they were asked to do so because of a positive preliminary breath test result or because they refused to undergo the preliminary examination, they are considered to be under the influence of alcohol.
Alcohol as a reason for termination?
If an employee is suspected of being under the influence of alcohol, it is first and foremost necessary that they immediately cease performing work until they are fully fit to perform it again. Further action against the employee depends on the employer who must evaluate the seriousness of the breach of duty and the degree of risk to safety and choose the appropriate course of action accordingly.
Importantly, the mere detection of alcohol in an employee does not always automatically constitute grounds for dismissal. Not every case will constitute a particularly gross breach of duty that would justify immediate termination of employment – sometimes it will not even be a serious breach of duty leading to termination by notice. Each situation must be assessed individually, taking into account the specific circumstances, the type of work performed and the degree of influence. On the other hand, in some cases, performing work under the influence of alcohol may constitute a misdemeanour or even a criminal offence.
However, the law allows for certain exceptions to the ban on alcohol consumption or entering the workplace under the influence of alcohol. The first exception applies to employees working in unfavourable microclimatic conditions, typically in steelworks or glassworks. Under certain conditions, they may consume beer with a reduced alcohol content, which in practice is often replaced by isotonic drinks. The second exception applies to situations where alcohol consumption is part of the performance of work tasks or is usually associated with them. This may include, e.g., tasters in the production of alcoholic beverages or a symbolic toast at a formal reception with business partners. However, these cases are truly exceptional and should be interpreted restrictively. The basic rule remains unchanged: sobriety in the workplace is a standard that protects not only the employer but, above all, the safety of all involved.
We recommend that employers review their internal regulations to ensure that they allow for the proper and smooth-running alcohol testing. At the same time, we recommend preparing a sample protocol of conducting the test and ensuring that suitable and approved types of breathalysers are used. This will ensure that the procedure for suspected alcohol influence applied by the employer is sufficiently conclusive and will stand in the event of subsequent sanctions being imposed by the employer. A transparent and properly set up process will help employers not only to comply with their legal obligations, but also to minimise the risk of potential disputes with employees.