Act amending the Act - Labor Code and some other acts signed by the President (sobriety control)

On January 27^th, 2023, the polish President signed the Act of December 1^st, 2022 amending the Labor Code and certain other acts (hereinafter: the "Act"), introducing significant changes to the Polish legislative system, including, among others, regulating remote work as a permanent solution. The provisions in this regard come into force on 7 April this year.

Sobriety control and control of employees for the presence of alcohol-like substances in their bodies

The Act, on the date of its entry into force, i.e., from February 21, 2023, introduced into the Polish legal system provisions enabling employers - when it is necessary to ensure the protection of life and health of employees or other persons or the protection of property - to carry out sobriety checks of employees and checks on the presence of alcohol-like substances in the body.

The new regulations specify in detail the rules for carrying out inspections by the employer. The employer may carry out preventive inspections as well as inspections in a situation where he has a reasonable suspicion that an employee is in the state after using alcohol, in the state of intoxication or after using an alcohol-like substance. The Act stipulates that the inspections will be carried out using methods that do not require laboratory testing.

It should also be emphasized that the employer will have to carry out sobriety tests or checks for the presence of substances acting similar to alcohol in such a way as not to violate the employee's dignity and other personal rights.

At the same time, the employer was obliged to regulate the manner of conducting the inspection in the collective labour agreement or in the work regulations or in the announcement, if the employer is not covered by a collective labour agreement or is not obliged to establish work regulations, specifying the group or groups of employees covered by the inspection, the detailed method of conducting the inspection, the type of equipment used to carry out the checks, their frequency and the duration of the checks.

The employer will have to inform employees about the introduction of these inspections in the manner adopted by the employer, no later than two weeks before the commencement of the inspection.

Pursuant to the introduced Act, Art. 221d of the Labor Code, the employer may not allow the employee to work if the sobriety test shows the presence of alcohol in the employee's body or there is a reasonable suspicion that the employee came to work after using alcohol or intoxicated or consumed alcohol during work.

The Act does not regulate how the absence of an unauthorized employee, resulting from obtaining a positive result during the inspection, will be qualified. It should therefore be assumed that in this respect the decision will be made by the employer, who, for example, will be able to consider such an absence as unjustified, for which the employee does not retain the right to remuneration. If, on the other hand, the test result does not indicate the employee's state after the use of alcohol or the state of intoxication, then 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.

The detailed conditions and methods of conducting tests for the presence of alcohol in the employee's body and testing for the presence of alcohol-like substances in the employee's body by the employer are set out in the Regulation of the Minister of Health of February 16, 2023 on testing for alcohol or alcohol-like substances in the employee's body.