According to the Labour Code it is prohibited to allow an employee to work if he is intoxicated or under the influence of the so-called drugs.

An employee's intoxication can be determined in two ways:

1. in the event of a justified suspicion that an employee came to work under the influence of alcohol or drank alcohol at work (e.g. staggers) - the police is competent to conduct a sobriety test (this applies to all employees),

2. in the case of some categories of employees specified in internal regulations, the employer is competent to carry out an independent, preventive sobriety test even if an employee does not show signs of being under the influence of alcohol.

Similar rules are applied to check whether an employee is under the influence of the so-called drugs.

Condition after alcohol use - the alcohol content in the body being or leading to a concentration in the blood of 0.2‰ to 0.5‰ of alcohol or the presence in the exhaled air of 0.1 mg to 0.25 mg of alcohol in 1 dm³.

Intoxicated state - the alcohol content in the body being or leading to a concentration in the blood of more than 0.5‰ of alcohol or the presence of more than 0.25 mg of alcohol in 1 dm³ in the exhaled air.

Agents commonly referred to as drugs in the Act were called "alcohol-like agents". Their list will be specified in the regulation issued by the Minister of Health.

I. Independent, preventive control of employee’s sobriety by the employer

The employer is able to carry out a sobriety test on its own to cover employees whose work poses a threat to the life and health of employees or other persons or to property (any, not only the employer's property).

It is a preventive control, i.e. one that is carried out, as a rule, with regard to employees who do not show signs of intoxication. It is also possible for the employer to conduct it independently if the employees covered by this control show signs of intoxication.

The introduction of sobriety tests, the groups of employees covered by such tests and the method of conducting them are determined by the employer in an internal act, e.g. work regulations or notices.

As part of this sobriety test, the employer will only be able to test the air exhaled by the employee. It is possible to conduct the test only with a device with a valid calibration or a calibration certificate.

The time and frequency of sobriety tests is to be specified in an internal act. The employer determines, for example, whether he examines all employees covered by the control on a daily basis, or only some of them, whether he examines employees before allowing them to work or also during the performance of work.

The employer has to inform employees about the introduction of the control at least 2 weeks before the inspection begins.

If the sobriety test does not show the presence of alcohol in the employee's body - the employee is allowed to work, and the result of this test is not stored anywhere.

If the sobriety test shows that the employee is intoxicated, the employer is obliged to prevent him from working, and the result of such inspection is documented in the employee's personal file.

The employer is obliged to inform the employee that he does not allow him to work because of his intoxication. He is able to do it in any form, even orally.

At the request of the employer or employee, the police may be summoned to conduct a sobriety test of the employee.

As a rule, the police should conduct a breathalyser test on the employee. The police may order a blood test for the presence of alcohol in the employee's body when:

1. it is not possible to conduct a breathalyser test;

2. the employee refuses to undergo a breathalyser test;

3. the employee requests a blood test despite the breathalyser test;

4. the condition of the employee makes it impossible to conduct a breathalyser test;

5. it is not possible to indicate the alcohol concentration due to exceeding the measuring range of the device used for measurement.

The police draws up a report on the sobriety test. Then, they provide the employer and the employee with written information containing the employee's data, date, hour and minute of the test and its result (the police will not provide the employer with the entire report). The employer keeps this information in the employee's personal file if the test shows that the employee was intoxicated.

If the test carried out by the police shows that the employee is sober, the period of not allowing the employee to work is a period of justified absence, for which the employee is entitled to remuneration.

If the test carried out by the police confirms that the employee is under the influence of alcohol, the decision on qualifying the period of not allowing him to work is up to the employer - he may consider it as an authorised absence (with or without remuneration) or an unexcused absence (without remuneration).

The employer may impose a disciplinary penalty (a warning, a reprimand, financial penalty) on such an employee. He may also terminate the employment relationship with him without notice due to the fault of the employee (i.e. dismiss him on disciplinary grounds). The employer may apply one or both of these sanctions.

Similar rules of conduct apply in the case of control of employees for the presence of substances similar to alcohol (so-called drugs) .

The most important difference is that the employer and the police test the employee's saliva with a drug tester (and not breathalyser).

A drug tester is a device that tests the presence of drugs in saliva. It shows the test result a few minutes after inserting the saliva sample cassette into the device.

The police may order a blood or urine test when:

1. it is not possible to take a saliva test;

2. the employee refuses to submit to a saliva test;

3. the employee requests a blood or urine test despite the saliva test;

4. the employee's condition prevents saliva testing.

The list of substances which presence in the employee’s body may be tested by the employer is to be specified in the regulation of the Minister of Health.

The physician prescribing medicines containing such substances (which may include some painkillers) should decide whether an employee taking those medicines is able to perform his  job. Depending on the job, the employee may be temporarily unable to do it.

II. Reasonable suspicion that the employee is intoxicated

An employer who suspects that an employee has come to work under the influence of alcohol is obliged to prevent that employee from working. Such an employer's suspicion may be justified, for example, by the employee's unsteady gait, the smell of alcohol from his mouth or slurred speech.

The employer is obliged to inform the employee that he does not allow him to work because of his intoxication. He can do it in any form, even orally.

If an employee questions his or her state of intoxication, the employer can prove the employee's intoxication in various ways:

1. e.g. with the testimonies of witnesses and by making a note confirming this; then he may draw consequences against the employee (disciplinary penalty, disciplinary dismissal) or

2. at the request of the employer or employee, the police is called to conduct a sobriety test of the employee.

If the employee is not subject to a sobriety control, the employer does not have the right to test him with a breathalyser. However, if he is subject to internal (preventive) sobriety control on the basis of internal regulations, the employer may independently test him with a breathalyser.

Similar rules of conduct apply if an employee drinks alcohol during work (obligation to immediately relieve him from duty  and procedure as above).

Similar rules of conduct also apply in the event of a suspicion that an employee came to work in a state after using a drug or used a drug during work.

III. Sobriety control on remote work

It does not seem possible that employees performing remote work meet the conditions for being subject to a sobriety test or a control for the presence of substances similar to alcohol. Such controls may be carried out when they are necessary to ensure the protection of life and health of employees or other persons or the protection of property.

As a rule, remote work will be performed by employees using ICT devices and will not carry a high risk to health, life or property.

However, if employees performing remote work meet the conditions contained in the regulations being introduced, they may be subject to appropriate control, because it is the employer who will determine the group or groups of employees covered by the control and the manner of its implementation.