The bill drawn up by the Ministry of Development, Labour and Technology allows employers to independently control the sobriety of employees. This is a fundamental change of the approach caused by, among others, the widely discussed stance of the President of the Personal Data Protection Office (PUODO) from March 2020. 

Let us recall that in this position PDPO concluded (incorrectly) that information about the employee’s sobriety is personal data of special importance as it pertains to their health. However, the conclusion reached by the PDPO (prohibiting an employer from conducting a sobriety test) currently derives from different regulations. The Act on Upbringing in Sobriety and Counteracting Alcoholism (Article 17 sec. 3) stipulates expressly that in the event of suspicion that an employee consumed alcohol at work or came to work having consumed it, the test may be carried out only by an authority appointed to protect public order – in principle the Police.

The bill differentiates the control of employee sobriety and sobriety testing. This creates a lot of confusion and ambiguity. The employee’s sobriety test, which will may indicate the presence of alcohol in the body will be still carried out by the Police. The employer will only be able to control the presence of alcohol in the employee's body – on an “either/or” basis, as it were. 

In order to be able to control sobriety the employer will have to define control rules in the labour rules and regulations, collective bargaining agreement or an official announcement. Such a regulation will have to take into account the personal rights of the employees and protection of their personal data, and give managers appropriate powers. The procedure should also provide for a path for reporting suspicions of employees being under the influence of alcohol. 

The above issues should be incorporated into the compliance system in place at the employer. Sobriety control regulations should take into account the policies for prevention of irregularities and abuse and take into account personal data protection principles. What is more, the procedure for reporting consumption of alcohol should be part of the whistleblowing policy. 
 

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