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Labor Code 2023. Changes from February 21, 2023 – employee sobriety control

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Changes in the Labor Code. Regulations allowing employers to carry out independent sobriety checks of employees came into force on Tuesday. How will such checks be carried out? What are the consequences for the employee? Below we write about the details.

It is about the Act of December 1, 2022 amending the Act – Labor Code and some other acts. “These are very important regulations, which were created out of concern for safe and responsible working conditions” – stressed the Minister of Family and Social Policy Marlena Maląg.

On Tuesday, February 21, regulations came into force that allow employers to check employees for the presence of alcohol or alcohol-like substances in their bodies. “Employers gain new powers to control the sobriety of their employees. It’s all thanks to the amendment to the Labor Code, which was prepared by the Ministry of Family and Social Policy” – indicated the head of the Ministry of Labor and Social Policy.

“If internal regulations provide for preventive sobriety control, employers will be able to check their employees using a breathalyzer. In other cases, such control will be carried out by the police. The same rules will apply in the case of suspected use of other narcotic substances” – explained Maląg.

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The Minister of Family emphasized that such provisions were expected by employers.

Sobriety control of employees

Pursuant to the new law, the employer may introduce sobriety checks on employees if it is necessary to ensure the protection of life and health or the protection of property. Importantly, the sobriety test may also cover those working remotely.

The provisions stipulate that the sobriety control may not violate the employee’s dignity and other personal rights and includes testing using methods that do not require laboratory testing, using a device with a valid document confirming its calibration or calibration.

The introduction of the sobriety test, the time and frequency of its performance and the type of device used for the control should be determined in the collective labor agreement, in the work regulations or in the announcement. This means that inspections can be carried out even on a daily basis, provided that the details of their performance are previously agreed in the company’s work regulations or announcement. If the employer is not covered by a collective labor agreement or is not obliged to establish work regulations.

The employer should inform the employees about the introduction of the sobriety test no later than 2 weeks before the commencement of the sobriety test.

The employer may prevent you from performing your duties

The employer does not allow the employee to work if the sobriety test shows the presence of alcohol in his body indicating the state after the use of alcohol or the state of intoxication, or there is a justified suspicion that the employee came to work in the state after the use of alcohol or in the state of intoxication or consumed alcohol during work.

“If the breathalyser shows that the tested person has from 0.1 mg to 0.25 mg of alcohol in the exhaled air (from 0.2 to 0.5 per mille), the employer cannot allow him to perform his duties on that day. This also applies to situations where there is a reasonable suspicion that the employee is not sober. In the case of concentrations lower than 0.2 per mille, it is considered that the test did not show the presence of alcohol in the employee’s body” – indicated AlcoSense experts.

At the request of an employer or an employee who has not been admitted to work, a sobriety test may be carried out by an authorized body appointed to protect public order. This authority performs the examination using methods that do not require a laboratory test or orders a blood test.

If the result of the examination does not indicate the employee’s state of alcohol consumption or intoxication, the period of not admitting the employee to work is the period of justified absence from work, for which the employee retains the right to remuneration.

Similar regulations were introduced in the case of checking employees for the presence of substances having a similar effect to alcohol.

what consequences?

The experts explained that appearing at the workplace under the influence of alcohol or intoxicated (above 0.5 per mille of alcohol in the blood) may result in a disciplinary penalty specified in the work regulations and may be the basis for dismissal in disciplinary proceedings.

There will also be obligations on the part of the employer. “If the test shows the presence of alcohol, the employer is obliged to draw up a test report containing the employee’s personal data, the circumstances of the inspection and the date, time and measurement result. The document may also contain annotations about illnesses and information whether the employee requested an additional blood test” – indicated. Companies are to keep reports for one year.

The ordinance of the minister competent for health matters, in consultation with the minister competent for internal affairs and the minister competent for labor matters, will specify the conditions and methods of conducting tests, the method of their documentation and the list of substances acting similarly to alcohol.

In addition, changes to the Labor Code consist, among others, in on the replacement of the provisions on telework with the provisions on remote work. A definition of remote work has been introduced. The regulations will come into force on April 6 this year.

Main photo source: Shutterstock

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