The AVG states that testing employees for substance use is not allowed. According to the Personal Data Authority, it is only permissible to have employees undergo alcohol and/or drug testing if there is a legal basis for doing so.
Consent for alcohol or drug test
For now, the permission is there only for certain professions in the Shipping Act, the Railways Act, the Local Railways Act, and the Aviation Act. Consider, for example, checks on pilots and train drivers. They may be required to take a breathalyzer test because they are responsible for a large group of passengers during their work.
On May 10, 2022, the Minister of SZW announced in a letter that the Working Conditions Act will be amended to allow testing. The amendment to the law will first give companies covered by the Major Accident Hazards Decree (Brzo companies) these testing options. This involves about 400 companies where testing for specific functions will soon be required. To be allowed to test, an employer must have a proper alcohol, drug and medication (ADM) policy (tool). This bill is still in the pipeline and it is unclear, given the outgoing administration, whether this will become new legislation.
Alcohol or drug test to prevent workplace accidents
Many companies, where the risk of workplace accidents is high, do test their employees for alcohol or drugs according to their regulations. So that is formally against the law, but according to these companies (mostly rightly) privacy is secondary to safety. These employers invoke their right of instruction (art. 7: 660 BW). This is limited by good employment practice. If the employer’s regulations interfere too far with the right to privacy, the result may be that these regulations do not stand.
There is not much case law on this point. Based on a Supreme Court ruling, among other things, it seems that taking alcohol and drug tests at work is permitted, provided strict conditions are met (necessity, proportionality, subsidiarity).
Employer’s duty of care
An employer may argue that, given the nature of the business activity, it has a far-reaching duty of care (necessity), so the right to privacy must give way somewhat (proportionality). Furthermore, the employer could argue that a breathalyzer test in the case of suspected alcohol is much less invasive than a blood test, thus meeting the requirement of subsidiarity. Employers can lay down these rules in a so-called ADM policy. The Works Council has a right of consent. Should an employee argue in any case that the ADM policy and/or the test were not permissible, even then, in labor cases, the evidence can almost always be used. Excluding illegally obtained evidence is not common.
Conclusion
If you have any questions on this topic, please contact Richard Ouwerling, an attorney specializing in employment law.
