The current legal status does not allow the employer to examine an employee with a breathalyzer
The Ministry of Family, Labor and Social Policy supports the position of the President of the Personal Data Protection Office (UODO) on conducting sobriety tests on employees.
‘The employee's sobriety test may be carried out by the police, but not by the employer’ – this statement published by the President of UODO in June 2019 has now been confirmed by the Ministry of Family, Labor and Social Policy in response to the inquiry from the Ombudsman for Small and Medium-sized Enterprises (SMEs).
As the Polish Supervisory Authority, the Ministry of Labor pointed out that the employee’s insobriety is the data concerning health specified in Art. 9 item 1 of the GDPR. The principles on which an employee's sobriety test can be conducted are set out in Art. 17 of the Act of 26 October 1982 on Upbringing in Sobriety and Counteracting Alcoholism.
According to this provision, the sobriety of employees can be examined, but only if both conditions are met:
- the examination takes place at the request of the manager of the company, a person appointed by him/her for this purpose or the concerned employee if there is a reasonable suspicion that the employee arrived at work under the influence of alcohol or consumed alcohol during work;
- examination of the employee’s sobriety shall be carried out by a competent body appointed to protect public order (e.g. the police), while the procedure of blood collection shall be performed by a person with appropriate professional qualifications to ensure the credibility of the test result.
The statement of the Polish SA has raised many queries. The Ombudsman for SMEs submitted to the Ministry of Family, Labor and Social Policy a request for legal clarifications referred to in Art. 33 of the Entrepreneurs Law Act of 6 March 2018.
In response, the Ministry of Labor agreed with the President of the Personal Data Protection Office on the interpretation of the provisions on employees’ sobriety examination. The Ministry also pointed out that the legal explanations of the Entrepreneurs' Law Act serve only to ensure uniform application of legal provisions in the field of economic activity. Therefore, they should not apply to the provisions of the GDPR whose legal scope is broader than economic activity. The Ministry indicated that the President of the Polish SA is the body exercising supervision over proper compliance with the provisions on the personal data protection.
The President of UODO also addressed the Ombudsman for Small and Medium Enterprises pointing out that the legal explanations set out in the Entrepreneurs Law do not apply to the provisions on the personal data protection. The Polish SA underlines that requesting clarification of the regulations on the personal data protection from authorities other than the President of UODO may expose entrepreneurs to legal uncertainty if positions turn out to be divergent. Any other interpretations regarding the personal data protection are not binding for the President of UODO.
UODO reminds that if the legislator allows independent examination of the employees’ sobriety, the Office will closely monitor such an initiative to ensure guarantees for the rights and freedoms of persons. The need to ensure public security must not ignore the right to privacy and the dignity of employees.