Being under the influence may significantly impact the employee’s ability to perform work by reducing productivity and increasing exposure to accident. What are the thumb rules when doing alcohol and/or drug tests at work in Hungary?
Health and Safety Requirements
On the one hand, employers are obliged to ensure healthy working environment and safety at work. Furthermore, employers may and have to notify employees on the laws or internal policies affecting their job. Certainly, it is also necessary to instruct employees how to perform work.
On the other hand, employees have to attend work in a condition fit for work and keep such condition in the course of their working time. In addition, employees must perform work in accordance with relevant regulations and instructions.
In some industries (e.g. transport), it qualifies as a criminal offence to be under the influence while working.
Alcohol Test Only on a Random Basis
First of all, no consent is necessary from the employee to conduct an alcohol test. Why? On the basis of the Hungarian Labour Code, employees have to cooperate including when the employer checks as to whether they comply with their obligations.
If any of the employees – who were randomly selected for an alcohol test – refuses to cooperate, his/her employment may be terminated due to breach of significant work related obligation (cooperation).
From a privacy law perspective, alcohol test may be conducted solely by another employee of the employer. Thus, it may raise legal concerns when employers require that outsourced security staff members do the testing.
It is of a key importance to use alcohol tests which do not relate to any other substance or diseases. The alcohol testing must be fairly administered, practicaly by taking minutes with two witnesses. It is suggested to do the testing in a separate room.
It is also to be highlighted that employers have to asses the legal basis of the testing as data processing and prepare the related privacy statements for employees. If necessary under Article 6 (1) (f) of the GDPR (legitimate interest), an interest weighing test shall be carried out prior to introcuding the alcohol testing practice.
No Drug Test Allowed
In Hungary, it is not allowed to take any drug tests at work, not even if there is a suspicion of drug use.
The main reason for this comes mainly from data privacy laws arguing that (a) drug use is a special category of personal data; and (b) instead of real time results, drug tests show previous consumptions. Why is it problematic? Because employees may not be monitored outside working hours. It follows that drug tests would constitute an unreasonable and unjustifiable intervention in the employee’s privacy.