Alcohol and drug tests in the workplace are problematic from a legal point of view

• However, there are certain conditions in which drug and alcohol tests can be ordered preventively in the workplace.
• However, the person to be tested must agree to the test.

Since every drug test and breathalyzer test in the workplace interferes with the privacy and personal integrity of the employee concerned, preventive tests are not without problems. Nevertheless, they are quite legitimate in certain situations or areas of work.

In which cases can drug tests be ordered preventively?

In certain situations, employers can order or carry out alcohol and drug tests in a preventive form. This is the case if an overriding security interest conflicts with the employee’s right to privacy. In this case, the protected security interests outweigh the protection of privacy. As an example, the (life) danger to other employees or third parties can be mentioned here. Such hazard classifications are often found in road traffic, air or public transport.

What should be considered when conducting a drug test in the workplace?

In order to be able to carry out regular drug tests and alcohol tests at the workplace, clear regulations are required, which are part of the employment contract. Employees must be informed in advance that such drug tests can be carried out as well as alcohol tests. Another important point to note is that the checks are only carried out on a random basis.

Medical professionals are needed to carry out such alcohol and drug tests in the workplace. They ensure that the test is carried out correctly and that the interpretation of the results is correct. The disclosure of health data is subject to medical secrecy as well as the principles of proportionality and expediency. For this reason, the healthcare professional may only provide the employer with the findings on the ability to perform the work and not specific information about the drug or alcohol consumption.

Does the employee have to give consent for the drug test?

In principle, the consent of the person to be tested is required for every test. However, if the person refuses consent, compulsory testing is not legitimate. Since, as mentioned, such preventive drug tests and alcohol tests are mainly carried out for safety-critical activities, the employee must expect consequences under employment law if there is an overriding safety interest. This can even end with a termination of the employment contract after a justified warning.

Drug tests from Toxcontrol