When can employees be tested for alcohol or drug use? † NOW

Within certain professional groups, it is legal to test employees for alcohol and drug use. This allows pilots, drivers and police officers to be tested. This may soon be allowed in more professions. Hiring lawyer Danielle Pinedo, partner at law firm Baker McKenzie, explains how it works.

Why is it that more professions will soon be allowed to be tested for alcohol and drugs?

Danielle Pinedo: “Now you can only test your employees for alcohol and drugs if there is a legal basis for it. This now only applies to, for example, pilots, locomotive drivers in NS and police officers. They can be tested. In all other professional groups may not be tested on because of privacy laws, because the result of a test falls under special personal data. ”

“The call from the heavy industry to be allowed to test employees for alcohol and drug use has existed for some time. Former Secretary of State for Social Affairs and Employment (SZW) Tamara van Ark sent a letter to the government in 2020, in which she addressed “then. it was shelved for a while because of the corona. Minister Van Gennip of SZW wrote in a new letter to Parliament in May this year that she will come up with a bill.”

What are companies already allowed to do in this area?

“Companies may have a policy that says alcohol and drug use are not allowed during working hours. For example, your policy may state that if someone is under the influence of alcohol or drugs, they can be sent home. There are other sanctions as well. .

“A dismissal is not justified in all cases. A substance test can be seen as a violation of AVG legislation, and there are high fines for that. ”

Danielle Pinedo, hiring lawyer

“Although testing is not allowed, there are employers who do it anyway. It is also clear from case law in the field. There is, for example, a case where a dismissal has survived after a positive substance test. The first question was, “if that test violated the employee’s personal privacy and was justified. But if an employee is aware of the alcohol and drug policy, knows what sanctions there are and also refuses help if necessary, dismissal may still follow.”

Does it make sense to test while it’s not allowed?

“The fact that there are rulings where a dismissal has taken place does not mean that you as a company can just take the risk. The basic principle is that it is now prohibited. A dismissal is not justified in all cases. A test can still be seen as a violation of AVG legislation, for which there are heavy fines. “

What exactly will happen if the law on alcohol and drug testing is changed?

“Then the working conditions law will be changed so that testing for alcohol and drugs in several professional groups is possible. The minister will first focus on companies where there are great risks if someone has used alcohol or drugs. These are a total of about four hundred companies fall into. under the risk decree. major accidents (Brzo). These are primarily the chemical industry and companies where hazardous substances are stored. This can also be followed by other types of companies where there are also safety risks. “

When can we expect this change in the law?

“The minister has said that she is betting on coming up with the bill in the autumn. It remains to be seen how fast it goes then. But there seems to be enough support for it. For example, the employers’ organization VNO-NCW and SMV Holland indicated that it was a very important subject. As an employer, you have a duty of care, you must ensure a safe and healthy working environment for your employees. This is the case if an employee has used alcohol or drugs. “

In addition, you are also obliged to call for help from, for example, a company doctor or company assistance if you suspect that an employee is struggling with a drinking or drug problem, which may be a reason to aim for the termination of the employment relationship. contract.”

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