Possible measures for employers against employees who are under the influence of alcohol, drugs or other illegal substances in the workplace
Article published in Direktor magazine no. 42, Autumn 2019
The act regulating health and safety at work clearly states that an employee must not work or be in the workplace under the influence of alcohol, drugs or other illegal substances1. What is less clear to employers is what they can do to determine whether an employee is under the influence of illegal substances and what measures are even available to them in relation to an employee that is deemed to be under the influence of such substances. This is because the procedures for determining the presence of illegal substances are not described in detail or not at all in legislation and are left up to employers to determine in their internal acts. Precisely because of this, employers are faced with the question of how to legally handle the procedures from the initial detection of the presence of illegal substances to the final outcome, e.g. in a cancellation of the employment relationship.
In the event that the employer starts to suspect that an employee is under the influence of illegal substances, he has the right and obligation to verify whether the employee is able to handle their workload. Such an employee can represent an increased risk not only to themselves, but to their co-workers as well. If the employer determines the employee is under the influence of illegal substances, the employee must be removed from their work station.
Here, the employer does not necessarily need to determine the level of alcohol intoxication or the amount of other consumed illegal substances by using technical means (e.g. a breathalyser). At least in the case of alcohol intoxication, case law permits the employer to determine it using all legal means. If the employee is obviously intoxicated, this can also be confirmed with co-worker and supervisor testimony regarding the employee’s behaviour in the workplace and with other indisputable signs of intoxication, including the employee’s statements.2 However, the employer’s burden of proof will be somewhat greater in this case than if the employee’s intoxication is determined with a breathalyser, which provides more reliable and measurable results.
The employer can define the process and manner of determining intoxication with an internal act, in which he can determine that employee intoxication will be verified using a breathalyser. Employers generally engage an external service to this end. However, the intoxication test can only be carried out with the employee’s consent. If the employee refuses to take the breathalyser test, the employer will have to prove this fact with other evidentiary means (e.g. witness testimony).
What to do if the employee refuses to take the breathalyser test? Employers usually specify in their internal rules that the refusal to take a breathalyser test itself constitutes a violation of work obligations. However, it should be noted here that in terms of case law, the refusal to take a breathalyser test does not in itself provide sufficient basis for an extraordinary cancellation of an employment relationship.3 The employer will also have to prove the existence of other circumstances pointing to intoxication, such as alcohol breath, slurred speech, unsteadiness in walking etc. and therefore will not be able to refer solely to the fact that an employee violated their work obligations by refusing to take a breathalyser test.
Determining the presence of drugs in the body is usually more challenging than the presence of alcohol, for which reliable results are obtainable with a simple breathalyser test, although more and more quick drug tests are becoming available, although these are not as reliable as e.g. laboratory tests. In these cases, employers therefore often decide to refer the employee to a preventative medical examination. Pursuant to the provisions of the Rules on preventive medical examinations of workers4, this kind of examination is permitted only in the case of a suspected addiction, which can affect the employee’s work abilities. If the employee declines such a referral, the employer could deem this to be a violation of work obligations; pursuant to Article 54 of the ZVZD-1, the employee is namely obliged to respond and submit to a medical examination regarding safety and health risks in the workplace. If the medical examination determines the presence of illegal drugs in the body, the medical service provider will forward the information to the employer about the employee’s work ability and it data on whether they had been found to be under the influence of illegal substances or not. The employer will not receive information on exactly which illegal substance was involved and at what quantity, but only whether or not illegal drugs were present in the employee’s body.
In the event that the process of determining the presence of illegal substances in the employee is not carried out correctly and legally, prejudicing or violating the employee’s rights can occur, e.g. the right of inviolability of the physical body and the right to personal data protection, which are both rights protected by the Constitution. The basic guideline is therefore that the employee cannot be forced to consent to any kind of testing for the presence of illegal substances. If the employee does not consent to being tested for the presence of illegal substances or does not go to the referred medical examination, the employer has no other alternative but to determine and prove this fact in other, somewhat less scientific ways, examples of which are listed above. It is important that when the employer determines that an employee is working under the influence of alcohol, drugs or other illegal substances, he immediately removes such an employee from their work station, as this is imposed on him by law. Then depending on the circumstances, the employer may decide to issue the employee a written warning about the violation, launch a disciplinary proceeding, or even carry out an extraordinary cancellation of the employment contract.
1. See Article 51 of the Health and Safety at Work Act (Official Gazette of the Republic of Slovenia no. 43/11, “ZVZD-1”).
2. Cf. Decision of the Supreme Court RS VIII Ips 251/2012 of 2 April 2013).
3. The VDSS found this e.g. matter Pdp 1067/2014 of 15 January 2015.
4. Official Gazette of the Republic of Slovenia no. 87/02 as amended.