Publication date: 9 May 2019
The results of alcohol and drug tests can be taken into account by the civil court in the assessment of a dismissal. Since the introduction of the GDPR, a legal ground is needed to test employees for alcohol, drugs and medicine use. A legal ground only exists for a limited number of professions. If you test without a legal basis, the Dutch Data Protection Authority (Autoriteit Persoonsgegevens) can take action against you, as an employer.
No, in principle that is not allowed. Since the introduction of the General Data Protection Regulation (GDPR), employers are not allowed to just process employees’ health data. This is only allowed if it is required by law. The judge can take the result of alcohol and drug tests into account when assessing a dismissal case but he does not have to.
It is of paramount importance for companies that safety in the workplace is guaranteed. The use of alcohol, drugs and medication can jeopardize this. That is why it is usually forbidden to be under the influence of alcohol etc. during working hours. A breach of this prohibition can give cause for dismissal, whether or not, whether or not with immediate effect.
Testing for alcohol or drugs without a legal basis is a breach of the GDPR. Anyone who conducts a test without legal reason may be fined by the Dutch Data Protection Authority (Autoriteit Persoonsgegevens). A legal exception applies in particular to persons exercising a high-risk profession. Think, for instance, of pilots or train drivers. There is no legal exception for the operation of machines.
You can try to find our whether someone is working under the influence by using other methods, such as checking their breath, responsiveness and balance. If that shows that the employee is probably under the influence, you can deny him access to the job. If it turns out to be a structural problem, you can seek the assistance of the company doctor.
You can also include rules of conduct and protocols in the staff manual, personnel regulations and HR policy. It must include that being under the influence of alcohol or other substances during working hours is prohibited. The employees must sign this for information. The rules of conduct and protocols must then be maintained consistently.
Would you like to learn more about using control methods on the work floor? Or do you want us to prepare or check personnel regulations or a staff manual ? Please contact us :
What shall we do with the drunken employee? Sack him? That isn’t always allowed. What do you have to take into account when dismissing an employee due to alcohol consumption?read on
In the last issue of Stare Decisis, Priscilla de Leede of Russell Advocaten, Mary Edenfield of Mateer Harbert and Ed Belam of Marriott Harrison discuss the most important topics to include in your employment contracts regarding the termination of the contract. There are some important differences to take into account!read on
A sick employee may not be dismissed. However, an employee who knows of imminent dismissal, cannot avoid this by reporting sick. But when does the employee know that this is the case? This question was central to the court case concerning the dismissal of a CFO of Volksbank.read on
If your employee reports sick, this may raise many difficult questions. What are your reintegration obligations during the sick leave period? What are you allowed to record about your sick employee with regard to the privacy legislation? We answered these and other questions during a webinar. Watch the video!read on
Is there already a works council in your company? Are you a member of your company’s works council? What are the advantages of having a works council in your company? Jan Dop and Priscilla C.X. de Leede explain the role of the works council and give an overview of the works council’s most important rights.read on