Remote work and employee sobriety testing in the Labour Code? Draft amendment to the Labour Code.

On Monday, 14 February, a draft bill concerning remote work and employee sobriety testing was published. These long-awaited changes will certainly require adjustments to existing procedures and documentation, as well as consultations and agreements, including with trade unions.

What will change?

Sobriety testing

According to the published draft, employers will be able to test employees for sobriety not only when they suspect that an employee is under the influence of alcohol, but also on a routine basis. This is undoubtedly a long-awaited right for many employers, for whom employee sobriety can affect the safety of people using the company's services and even public safety. Until now, if a company decided to routinely test its employees (e.g. due to applicable global requirements in this area), it exposed itself to liability for violating the privacy of its employees and processing their personal data in excess of its statutory authority.

What is more, testing will now cover not only the presence of alcohol in the body, but also substances that have a similar effect to alcohol, if this is necessary to protect the life and health of employees or other persons, or to protect property. Until now, the regulations have been silent on the possibility of testing employees for substances other than alcohol.

The test may be carried out using methods that do not require laboratory testing – only with the use of appropriate devices, e.g. a breathalyser gate, a mouthpiece breathalyser or a non-mouthpiece breathalyser. In this mode, it will therefore not be permissible, for example, to take a blood sample for testing.

The most important issues related to employee testing, such as the method of testing, the equipment used for this purpose, the time and frequency (e.g. daily or on a rotational basis), will have to be determined by employers in a collective labour agreement, work regulations or a notice. Therefore, if a company decides to carry out routine checks, it should adapt its internal regulations in this regard.

Personal data protection documentation should also be reviewed. It may also need to be amended.

Information about routine sobriety checks will have to be provided to employees in writing or electronically before they start work. Employers will have to inform employees about the introduction of sobriety checks no later than two weeks before they begin.

The circumstances of the test will be kept in personal files for a period not exceeding one year from the date of collection.

Employers will not be allowed to allow an employee to perform work if

The results of positive tests and information regarding the circumstances of their sobriety indicate the presence of alcohol in the body, indicating a state of alcohol consumption or intoxication, or if there is a reasonable suspicion that the employee has reported for work in a state of alcohol consumption or intoxication or has consumed alcohol during working hours.

At the request of the employee who has been refused permission to work or the employer, a sobriety test will be carried out by an authorised body (the police), and in this case it will generally be carried out using methods that do not require laboratory testing. The police will be able to order a blood test (or urine test for substances similar to alcohol) when:

  • the employee's condition does not allow for testing with a digital sobriety meter or other method that does not require laboratory testing,
  • it is not possible to determine the result because the alcohol concentration exceeds the measuring capacity of the device used,
  • an employee who is not allowed to work requests a blood or urine test,
  • it is not possible to carry out a breathalyser test or another method that does not require laboratory testing,
  • an employee who is not allowed to work refuses a breathalyser test or another method that does not require laboratory testing;

If the test result does not indicate the use of alcohol or a substance similar to alcohol or the employee's state of intoxication, the period of the employee's exclusion from work will be a period of justified absence from work, for which the employee will retain the right to remuneration.

Remote work

The legislator has also returned to the issue of regulating remote work in the Labour Code. The current draft is based on last year's proposal. As in the previous draft regulation, the current one provides for the repeal of the provisions on telework and the introduction of three types of remote work in its place:

  • remote work by agreement with the employer (at the request of the employee or on the initiative of the employer) – most similar to teleworking,
  • remote work at the employer's request – a result of the mechanism introduced in connection with the COVID-19 pandemic, and
  • occasional remote work.

Some solutions have now been clarified in relation to the previous version, amended or extended, as detailed below:

  • Pregnant women have been added to the group of persons whose requests to work remotely will be binding on the employer. This is a novelty in relation to both the previous version of the draft amendment to the Labour Code and the current provisions on teleworking.
  • As in the previous version of the draft, if the work is performed in conditions similar to current teleworking, either party to the employment contract will be able to request the cessation of remote work and the restoration of the previous working conditions. Such a request by the employer will generally be binding on the employee. This time, however, a clear proviso has been added that this does not apply to employees whose request for remote work the employer will be obliged to accept (such as the recently added pregnant women).
  • In the case of remote work performed at the employer's request, the employer will be able to withdraw their request at any time, but with at least one day's notice. The employer will therefore not be able to require the employee to report to the company's premises on the same day to perform their duties.
  • Compared to the previous version of the draft, the scope of internal regulations concerning remote work has also been expanded, including rules for employers to monitor employees. Employers who have decided to introduce certain solutions in this area into their work regulations or remote work policies based on the original version of the draft amendment in this regard should pay particular attention to this.
  • Inspections carried out at the employee's place of work may concern not only the performance of the work by the employee, including in the area of health and safety, but also compliance with personal data protection procedures. Any violations in this area may be grounds for revoking the employee's consent to work remotely.
  • Occasional remote work, on the other hand, may be performed at the employee's request, for a maximum of 24 days per calendar year. This is twice as much as originally proposed in last year's draft.
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