Sobriety checks in compliance with GDPR provisions

Data obtained during sobriety checks considered as personal data

Information on sobriety contains information about a person's state of health which is considered a special category of personal data within the meaning of the data protection regulations (Article 9 of the GDPR). The processing of this data, in principle, is prohibited, however, the provisions of the GDPR allow for the possibility of processing this data if it is necessary for the fulfilment of obligations, or for the exercise of special rights of the controller in the field of labour law, provided that this is permitted by the law of the Member State with adequate protection of the fundamental rights and interests of the data subject (Article 9(2)(b) of the GDPR).

The aforementioned possibility has been introduced by the Amendment act, therefore allowing for the processing of data under the condition that the processing is in accordance with the purpose, scope, and period of storage of personal data, as specified in its provisions.

Current legal framework

In the current legal framework, employers are not themselves allowed to conduct preventive sobriety checks of their employees. In fact, an employer can only test an employee's state of sobriety in the following situations:

• when there is a reasonable suspicion that the employee has consumed alcohol during their work time, or has appeared at work under the influence of alcohol; or
• with the help of a public authority established in order to protect public order (such as the police).

The Amendment act introduces far-reaching changes to the current legal regime, mainly by introducing the removal of the abovementioned conditions.

Who falls under the scope of these sobriety checks?

Under the provisions of the Amendment act, it will not only be those employees who perform work on the employer’s premises who will be subject to sobriety checks, but also to those employees who perform work remotely. In addition, the scope of application of its provisions will include not only employers and employees as defined by the Labour Code, but also employees who perform work on a basis other than an employment relationship, as well as those who are self-employed. Within this newsletter, we will refer to employers and persons who organise the work of persons other than employees as “employers”; and employees and persons employed on a basis different than an employment agreement as “employees”, unless we indicate that we are separately referring to particular entities.

When are sobriety checks permitted?

It is worth noting that not every employer will be able to implement these preventive checks. This is because an employer is allowed to process personal data on sobriety only when it is strictly necessary:

• to ensure the protection of the life and health of their employees or other persons, or
• to protect the employer's property.

If the above conditions have not been met, the employer will not be able to implement preventive checks for either the presence of alcohol or for the presence of substances similar to alcohol.

Basis and methods for conducting sobriety checks

Employers have to introduce regulations concerning preventive controls in their respective bylaws, collective bargaining agreements, or, in the case of employers not covered by collective bargaining agreements and not obliged to establish bylaws, in announcements. The regulations should indicate the group of employees covered by these checks, as well as the way, the time, and the frequency with which these checks are to be carried out. The employer must provide notification about the introduction of sobriety checks at least two weeks before the start of said checks, whereas new employees covered by the sobriety tests must be informed before they are admitted to work.

The law does not specify how to introduce testing in relation to the other categories of persons (e.g., for employers who organise work on a basis other than employment). However, one can assume that these employers must also be obliged to introduce the appropriate provisions in their internal regulations.

Sobriety tests will be carried out using methods that do not require laboratory testing by means of a device that has a valid document confirming its calibration.

In addition, upon the request of the employer or an employee who is not permitted to work, it will be possible to conduct a sobriety test by a body which has been established in order to protect public order (e.g., the police) using methods that do not require a laboratory test. In special cases, as specified in the Labour Code, it will also be possible to conduct a blood test.

The conditions, as well as the methods of conducting the abovementioned tests, will be specified in more detail in a regulation issued in accordance to the Amendment act.

Processing of personal data

Under the provisions of the Amendment act, an employer can process the following data:

• the date, time, and minute of the test;
• its result indicating a state of either being after the use of alcohol or a state of intoxication, or similarly, the result indicating a state of being after the use of substances acting similarly to alcohol.

In addition, the employer will be under the obligation to keep the above information in the employee's personnel file for a period not exceeding one year from the date of its collection. However, in the case of the issuance of a warning, reprimand, or fine, the employer should keep the information until said penalties have been declared null and void, in accordance with the provisions of the Labour Code. In addition to this, the retention period will be extended until the date of the conclusion of the proceedings, if the information constitutes, or is, a piece of evidence in proceedings such as civil or criminal proceedings. After the expiration of the aforementioned periods, the employer is obliged to delete the above data.

Detection for the presence of substances having similar effects to alcohol

In addition to the sobriety checks, the Amendment act also includes tests for the presence of substances having similar effects to alcohol, thereby expanding the scope of possible checks. This test is carried out, akin to a sobriety check, by means of non-laboratory methods. Alternatively, it is also possible to have a blood or urine test conducted by a public authority established in order to protect public order (e.g., the police) in situations similar to those in the case of checking for alcohol.

Authored by Ewa Kacperek and Martyna Sieczka.