Alcohol and drug testing in the workplace: a no go?

The (im)possibility of carrying out alcohol and/or drug tests on employees has recently often been brought to the attention of the media. The reason for this was a recently published article by the Personal Data Authority (hereafter: "AP") on this subject.[1] The AP is of the opinion that, in principle, such tests are not allowed. All cases in which alcohol and drug testing is permitted, according to the AP, are specifically mentioned in the law (such as in the Shipping Traffic Act and the Aviation Act).[2] If one of these legal exceptions does not apply, an employer is not allowed to administer alcohol and/or drug tests, according to the AP.

This strict approach by the AP has been criticized in the literature and in practice.[3] In particular, the answer to the question of whether there is really no legal basis for conducting alcohol and/or drug tests plays an important role. After all, employers are also obliged under Dutch law to ensure a safe working environment and to take (appropriate preventive) measures to that end.

What if, as an employer, you do not fall under one of the legal exceptions, but you still want to be able to perform alcohol and/or drug tests on employees? For example, because certain employees operate dangerous machinery (in production or on the construction site) or drive a forklift truck.

In this article, I will discuss the scope that current legislation - in my opinion - allows for conducting alcohol and/or drug testing in the workplace.

Legal framework

The applicable privacy rules are laid down in the General Data Protection Regulation ("AVG"). The AVG stipulates that personal data may only be processed in accordance with predetermined purposes - and to the extent necessary.[4] This includes testing whether there is a legal basis for the processing.[5] In the absence of such a basis, consent must in principle be sought from the data subject.

The latter, however, is tricky in the relationship between an employer and a (future) employee. This is because the starting point is that, given the power relationship with the employer, an employee can never give freely given consent to the employer. Moreover, according to the AP, the processing of the results of alcohol and drug tests involves the processing of employee health data.[6] The processing of such sensitive personal data, so-called special categories of personal data (hereinafter "special personal data"), is subject to stricter requirements than the processing of "ordinary" personal data. Special personal data include, for example, data concerning health or data revealing a particular racial or ethnic origin.

Does alcohol and drug testing involve the processing of special personal data?

There is discussion at the European (and national) level about the qualification of the results of an alcohol and/or drug test. Those results contain both information obtained from biological material and information about the physiological state of the employee. Possibly that result falls under the concept of "data about health," in the sense of a special personal data. In the Uniper case (with which you may be familiar), the AP tried to settle the discussion about the qualification of the results of an alcohol and/or drug test.[7] According to the AP, alcohol and drug testing involves the processing of health data - and thus special personal data. This is because "being under the influence" involves health data, according to the AP.

However, it also seems justifiable to me that certain alcohol and drug tests do not process health data (and thus special personal data). This is because the results of alcohol and drug tests conducted, for example, with a saliva tester or breathalyzer test only say something about an employee's temporary condition and thus contain no information other than whether an employee was under the influence of alcohol and/or drugs at the time of the test. Such a test result gives only a positive or a negative indication, but not a degree of intoxication. In my opinion, this is different when blood or urine is taken from employees.

Here could be a possible escape for the employer. By conducting alcohol and drug tests in the least intrusive manner (breathalyzer, saliva test or drug dogs) without processing special personal data. In that case, the employer could possibly invoke the legitimate interest (of both the employer and the employees).[8]

Despite the difference between how alcohol and drug testing may occur, the AP assumes that health data, and thus special personal data, are processed when all alcohol and drug tests are conducted. As mentioned, I do not agree with this in all cases. In order to be more in line with the current discussion in this article, I will assume below that special personal data are processed when alcohol and drug tests are performed, and I will leave the discussion about the qualification of results of alcohol and drug tests further undiscussed.

Basis for conducting alcohol and drug testing.

In principle, an employer is not allowed to process special personal data of employees, including data on health. The processing of special personal data is subject to a general prohibition, due to the sensitive nature of such data.[9] There are a number of exceptions to this general prohibition, as formulated in the AVG and in the General Data Protection Regulation Implementation Act (hereinafter "Implementation Act"). The processing of special personal data may only take place if there is an overriding public interest, appropriate safeguards are in place and the processing is provided for by law.

The latter requirement in particular is important when conducting alcohol and drug testing in the workplace; the processing must be stipulated by law. As yet, specific legislation on this point is - unfortunately - lacking. So are there no options at all for employers who do not fall under any of the current legal exceptions (such as pilots, boatmen and train drivers)?

The processing of employee health data (i.e., conducting alcohol and drug tests) has its basis in Article 9(2)(b) AVG. This article provides that European Union law or the law of a Member State may provide for an exception to the prohibition on the processing of special personal data in the field of labor and social security law. These exceptions may be located in sector-specific legislation or in the Implementing Act.[10]

To begin with, the Implementation Act has a number of exceptions to the ban on processing health data.[11] For example, health data may be processed by employers for the purpose of claims that depend on the employee's health status. Examples include entitlement to sickness-related benefits. There is also an exception when an employer processes health data of an employee for the purpose of reintegration of the employee. However, in my opinion, it is difficult to argue that the processing of health data in the case of alcohol and drug testing falls under the aforementioned exceptions. In principle, such tests are not conducted for the purpose of the employee's reintegration or for the employee or employer to claim benefits or other provision. There may be illness due to addiction to alcohol or drugs, but this must be determined by an expert and not by a (one-time) alcohol or drug test.

Another possibility is an appeal to sector-specific legislation and in particular the Working Conditions Act (here: "Arbowet"). Pursuant to the Working Conditions Act, the employer is obliged to ensure a safe working environment and to take (preventive) appropriate measures to that end,[13] in conjunction with Sections 7:658 and 7:611 of the Dutch Civil Code (hereafter: 'BW'), which relate to the employer's (civil) duty of care in a general sense. According to the AP, however, these provisions are not specific enough and there must be a specific law defining the conditions under which alcohol and drug testing may be carried out. But the employer can be administratively fined for failing to comply with the (public) duty of care set out in the Occupational Health and Safety Act.[14] Now what if an employee, who is on the production line under the influence of alcohol drugs, causes an occupational accident to occur as a result of which a number of colleagues become (partially) disabled? In that situation, wouldn't the employer have been better off simply conducting alcohol and drug tests? For the employer it is probably a choice between two evils: a fine from the AP or from the Inspectorate SZW. As an employer, I would (in most cases) opt for a safe working environment.

A second stumbling block to the performance of alcohol and drug tests under the Occupational Health and Safety Act and the Civil Code is the lack of clarity as to the direct effect of Article 9(2)(b) AVG[15] - which provision thus offers the possibility of getting out from under the prohibition on the processing of special personal data. If this provision indeed has no direct effect, then for the time being the Occupational Health and Safety Act and the Civil Code cannot be invoked for the ability to conduct alcohol and drug tests.

Finally, the employer can invoke the employees' fundamental right to healthy, safe and dignified working conditions.[16] However, the Occupational Health and Safety Act (and the duty of care in the Civil Code) is a specific elaboration of that fundamental right and is quite general, so as far as I am concerned, an employer is better off staying away from it.

Resume

In adopting the strict doctrine - that the results of alcohol and drug tests qualify as special personal data - I see the Occupational Health and Safety Act, in conjunction with the Civil Code, as the only possible basis. Of course, subject to the comments I have made in this regard.

If you use this basis as an employer, you run the risk that the AP, given its current position, judges that there is a violation of the AVG. As a result, the AP may impose (high) fines.

Nonetheless, in my opinion, it is perfectly understandable that an employer, given the importance of a safe work environment, would want to conduct alcohol and drug testing. The (financial) damage and impact that can occur if a product fails due to an employee's alcohol or drug use, or the damage caused by an unsafe work situation, is in some cases many times greater than the (possible) fine from the AP. For the aforementioned reasons, you as an employer can make the (financial) trade-off of conducting alcohol and drug testing despite the AP's position.

If you, as an employer, make this consideration, it would be wise to have a sound policy regarding alcohol and drug testing, making a clear distinction between the various positions within the organization and in which positions alcohol and drug testing is required - by the company physician - necessarily (for workplace safety reasons). Appropriate safeguards can be put in place by having the tests performed by an occupational physician. After all, an occupational physician has confidentiality and will carefully process the information obtained through the tests. Moreover, a company doctor will only share the necessary data with an employer, such as the extent to which an employee is under the influence of alcohol and/or drugs. As a result, an employer does not process employees' health data himself. The above, of course, in conjunction with the required consent of the Works Council on the policy regarding alcohol and drug testing.

This concludes an account of the possibilities and impossibilities of alcohol and drug testing in the workplace. The sources used for this article show that there are no clear legal rules for carrying out alcohol and drug tests, although there is a need for them in practice. At the moment, therefore, the proverbial "ball" is in the legislator's court. MKB Nederland and VNO-NCW have already pulled the Lower House by the sleeve and asked them to create a legal basis for conducting alcohol and drug tests. I sincerely hope that the Lower House will take up this request - of course with the necessary safeguards and only to the extent necessary. Should there be any developments, we will keep you informed.

Would you like to learn more about privacy, spar about this (controversial) topic, or do you take a different view on the discussion about alcohol and drug testing in the workplace? Then feel free to contact me.

[1] Personal Data Authority, "Testing for alcohol, drugs or medicines during working hours only with legal regulation," March 2019.

[2] See, for example, the Shipping Traffic Act and the Aviation Act.

[3] Recent: J. Berkvens, 'Are alcohol and drug tests allowed in the workplace', November 2018. See also N. Trappenburg, "Employer wants to be able to test for alcohol," March 2018 and I.J. de Laat, "Alcohol and drug testing, a missed opportunity?", December 2017.

[4] Under Article 5 General Data Protection Regulation, Recital 39 (principles governing the processing of personal data).

[5] Under Article 6 General Data Protection Regulation, recital 50 (lawfulness of processing).

[6] Personal Data Authority, "Personal data and controls on the use of alcohol, drugs and medicines in the employment relationship," March 2019.

[7] Investigation Report Alcohol and Drug Checks on Employees, "The Processing of Personal Data in the Implementation of Alcohol and Drug Checks by Uniper Benelux N.V. (formerly E.ON Benelux N.V.," November 2016, pp. 35-39.

[8] Under Article 6(1)(f) General Data Protection Regulation.

[9] Ministry of Justice and Security, "General Data Protection Regulation Manual," January 2018.

[10] G.J. Zwenne, in: T&C General Data Protection Regulation 2018, Art. 9 AVG, infra. 2.

[11] Pursuant to Article 30 of the General Data Protection Regulation Implementation Act.

[12] G.J. Zwenne, in: T&C General Data Protection Regulation 2018, Art. 30 UAVG, infra. 2.

[13] Pursuant to Article 3 Working Conditions Act.

[14] Pursuant to Article 33 (1) of the Working Conditions Act.

[15] Explanatory Memorandum to the General Data Protection Regulation Implementation Act and J. Berkvens, "Are alcohol and drug tests allowed in the workplace," November 2018

[16] As included in Article 31 of the Charter of Fundamental Rights of the European Union.