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February 09, 2023

Poland: More and More changes: Expanding Employers’ Rights with Sobriety Checks

Izabela Florczak, PhD and Katarzyna Ziółkowska

Polish companies have recently experienced numerous changes to employment regulations (regular and migrant). This results from both the geopolitical situation and the need to adapt national regulations to the European Union law, like work-life balance or transparent and predictable working conditions Directives. Implementation of the latter is now subject to very intensive efforts in the Polish Parliament. These regulations are being implemented late, which unfortunately does not have a positive impact on the quality of respective legislation.

Partially, the newest changes to Polish labor law reflect needs of the market. This refers to a complex regulation on the remote work as well as sobriety checks, which have been enabled to Polish employers as of February 21, 2023.

The sobriety checks regulations cover the possibility of verifying if an employee is under influence of alcohol and/or drugs. It is a much expected and needed regulation, in particular as regards to drugs. Those have been defined as substances having similar effects to alcohol and are listed in the respective regulation of the Health Ministry. Until now employers were deprived of any legal way of carrying out a drug test, which was a problem in particular in many production companies operating at night.

The new law allows the carrying out of sobriety checks on employees not only if there is a reasonable suspicion that the employee is not sobber but also if it is necessary to ensure protection of life or health or property (so called preventive sobriety checks). There is no obligation to specify in advance when exactly a sobriety test will be carried out. Still, it must be clear to personnel when they may expect a preventive check, e.g., each week.

Rules on sobriety checks carried out by an employer must be specified in internal company regulations; hence, a collective bargaining agreement, or work regulations, or – in case of a headcount below 50 persons – an employer’s announcement. Solely in the latter case may the employer introduce rules on sobriety checks on its own, in others the employer must discuss sobriety check rules with trade unions or other employees’ representatives in the company.

Employers that decide to introduce sobriety tests are required to indicate: (i) the groups of employees subject to the check, (ii) the manner in which it is to be performed, and (iii) time and periodicity of the checks. The test will be carried out by using a certified breathalyzer and a slime test for verifying if the employee has used drugs. In all other cases, including those when the employer did not specify the sobriety check rules, the inspection will be carried out by the police.

Sobriety control must be carried out in such a manner that does not violate the employee’s dignity or other personal rights. Therefore, it shall be conducted in a separated place with presence only of indispensable and respectively empowered persons.

It is also important to maintain appropriate rules for processing employees' personal data obtained during the sobriety checks. This will be the case if the sobriety check result turns to be positive. In such an event the employer will be obliged to draw up a protocol and store the results in a separate part of the employee’s file. The employee will be then not allowed to perform his tasks. Such a situation may also lead to further disciplinary actions towards the employee. Should, however, a test show a negative result, the time spent on the control procedure will be treated as working time and as a result compensated with the employee’s regular remuneration.

Izabela Florczak, PhD

Legal Advisor

Head of Employment Immigration Desk at C&C Chakowski & Ciszek (Poland)

Assistant Professor at the University of Lodz

Katarzyna Ziółkowska

Legal Advisor

Head of the International Department at C&C Chakowski & Ciszek (Poland)

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