An inebriated employee - how should the employer react?

Staying sober at work is one of the basic responsibilities of employees. An inebriated employee may not be allowed to work by the employer. Therefore, if there is a reasonable suspicion that the employee appeared at work after drinking alcohol or consumed alcohol during work, it is the employer's duty to remove such person from the performance of official duties.

Drunken employee - what does it mean?

State of intoxication is defined in Art. 46 sec. 3 of the Act on Upbringing in Sobriety and Counteracting Alcoholism. According to this definition, the state of intoxication occurs when the alcohol content in the body is or leads to:

• blood alcohol concentration above 0.5 ‰ or

• presence in the exhaled air above 0.25 mg of alcohol in 1 dm3.

In turn, the state after alcohol consumption occurs when the alcohol content in the body is or leads to:

• blood levels of 0.2 ‰ to 0.5 ‰ of alcohol or

• presence in the exhaled air from 0.1 mg to 0.25 mg of alcohol in 1 dm3.

A drunk employee - what should the employer do?

According to Art. 17 of the Act on Upbringing in Sobriety and Counteracting Alcoholism, the head of the workplace or a person authorized by him is obliged not to admit an employee to work if there is a justified suspicion that he appeared at work after using alcohol or consumed alcohol at work. The circumstances giving rise to the decision should be presented to the employee.

In order to confirm the inebriation of an employee, an examination is carried out. It may take place at the request of the manager, an authorized person or the employee himself who is suspected of intoxication.

Important! An employee's sobriety test may only be carried out by an authorized body responsible for the protection of public order, e.g. the police. If the test is to be carried out on a blood sample, the collection must be performed by a healthcare professional.

Ways of testing employee sobriety

According to the Regulation of the Minister of Health on the conditions and method of testing for alcohol content in the body, testing for sobriety may include:

• examination of exhaled air,

• blood test,

• urine test.

The first thing to do is to test the exhaled air. It should also be borne in mind that the employee may request that the sobriety test be carried out in the presence of third parties.

Intoxicated employee - business consequences

The employer may draw negative consequences in relation to the drunk employee.

The mildest form of punishment is a reprimand or admonition of the employee.

Another type of consequences that may befall a drunk employee is a fine. However, as stated in Art. 108 par. 3 of the Labor Code, for one breach, the fine may not be higher than the employee's one-day salary. On the other hand, total fines cannot exceed 1/10 of the part of the employee's remuneration to be paid after the deductions have been made.

The most severe sanction for a drunk employee is the loss of job. Pursuant to Art. 52 par. 1 of the Labor Code, the employer may terminate the contract without notice due to the employee's fault in the event of a serious breach of basic employee obligations by the employee.

However, it should be borne in mind that an employer who intends to fire an inebriated employee must have irrefutable evidence that the subordinate is drunk.