During the course of the World Cup we published our own matchups comparing various aspects of labor and employment law in some of the participating countries. Parts one and two of this series dealt with time off (vacation) and sick leave entitlements. The aim of the third part was to give an overview of general health and safety requirements in the workplace. On the eve of Thanksgiving in the United States, when food and drink are the order of the day (unless you’re in the stadiums), let’s ask ourselves this question: Can an employer require drug and alcohol testing?1
Japan vs Spain (December 1)
An employer in Japan may require its employees to undergo drug and alcohol testing if such testing is: (1) necessary for the employer’s specific job purposes; (2) carried out in a socially responsible manner; and (3) is with the express consent of each employee; However, an employer cannot force an employee to undergo a drug or alcohol test. If an employee refuses to submit to an examination, this refusal can only be grounds for disciplinary action by the employer if there is an urgent need for such an examination due to the employer’s special professional purposes. Note that drug testing is not generally performed by employers in Japan. Alcohol testing may be more common than drug testing but is still limited to certain occupations such as drivers.
Drug and alcohol testing law in Spain is a bit more complicated. The Constitutional Court issued guidelines on employee rights in drug testing in its judgment no. 196/2004 of 15 November 200426. Based on this decision, the following general rules apply to medical examinations, including drug tests:
- The employer may, from time to time, subject employees to workplace health surveillance or medical examinations if this is necessary in view of the risks involved in the job in question. If the work involves a risk beyond the normal level, the employer’s right to enforce health screening is justified as long as the health screening is proportionate to the risk involved in the work.
- As a general rule derived from the Occupational Safety and Health Act, these medical examinations require the consent of the worker.
- Employee consent is not required to enforce a health check if failure to submit would result in:
- endanger the worker;
- endanger other employees; or
- endanger other people, such as clients or customers.
- Where applicable, medical examinations must be proportionate to the risks of the work and necessary to verify risk and safety levels.
- Physicians performing health checks are bound by confidentiality and respect for the dignity of the employee.
- The employee is entitled to information about the results of these examinations.
- The use of the results for discriminatory purposes (in particular termination of an employment relationship) is strictly prohibited.
- Disclosure of the results of the health check is only permitted where necessary to enable those responsible for security to take the necessary measures to fulfill their obligations, subject to workers’ data protection rights and non-discrimination obligations.
When drug testing is required for employee selection, there is a risk that such a policy will be viewed as discriminatory. A court ruling authorized a drug test both before and during employment and confirmed that it did not violate workers’ rights, as the need to undergo such testing was stipulated by the company’s collective agreement. However, the result of such drug tests can only be used for health and safety purposes and therefore if the employee is terminated for drug addiction, the termination will be null and void as the employer used health information for purposes other than health and safety.
Costa Rica versus Germany (December 1)
Employer drug testing has been a contentious issue in Costa Rica. However, in April 2020, the Constitutional Chamber of the Supreme Court, the country’s top court, ruled that employers have the right to take appropriate measures to protect their interests and their business needs, provided they comply with the law and protect the dignity of all employees. However, the employer should ensure that workers are informed in advance about the tests and that their participation is voluntary. Employers can still discipline an employee for refusing to take the test if the employment contract includes an agreement to do so.
Decisions of the Constitutional Chamber of the Supreme Court are binding and enforceable on all (except themselves). The Department of Labor has issued guidelines consistent with the decision of the Constitutional Chamber. Therefore, employers’ drug and alcohol testing practices must comply with this framework.
In particular, drug testing through blood tests is illegal. In addition, the General HIV-AIDS Act prohibits any form of blood testing for employment unless specifically justified by a medical opinion. Therefore, all doping and drug tests should be carried out using other methods, such as commercially available urine tests.
In principle, drug and alcohol tests can only be requested if the employer has a legitimate interest in the results and the respective activity requires it. This applies to accident-prone professions such as drivers or machine operators. The scope of the examination should not go beyond what is necessary to determine whether the applicant is suitable for the post in question and whether he/she is able to carry out the duties required for the post.
As far as personal data (ie., any information relating to an identified or identifiable natural person) is processed, the GDPR applies and the processing of health data is then subject to very strict rules. If personal data is processed without a legal basis or without the employee’s ineffective consent, high sanctions can be imposed and the employee is entitled to financial compensation under data protection law.
South Korea vs Portugal (2. December)
An employer in South Korea may require drug and alcohol testing if the testing is part of the periodic, annual, or biannual testing required under the Industrial Safety and Health Act. According to ISHA, an employer must conduct a medical examination of its employees to protect and maintain the health of employees. This test must be carried out every six months (ie., every two years) for office workers and annually for all other workers. The medical examination obligation applies to all business premises, regardless of the occupation or the number of employees. Employers may not use the results of the medical examination for any purpose other than to protect and maintain the health of workers.
There is no explicit law regulating pre-employment testing, but it would not be legally impossible to require an alcohol or drug test before signing an employment contract.
The ability to require drug and alcohol testing in Portugal is limited. The employer may set up an undifferentiated, proportionate and appropriate drug screening program if that program does not contain discriminatory criteria. In principle, it is lawful not to involve a licensed company doctor. However, the drug screening program must be justified (eg., to protect the employee [self-protection] Employers, colleagues or third parties (eg, Customers)).
For specific industries (eg., aviation, transit, shipping, pipeline or mining industry, construction), this type of procedure is easier to justify (and may actually be necessary). The same applies to certain positions and functions of the employee (depending on the contract and function/job description), such as B. when working with children, the elderly, the sick and the disabled; if work with heavy machinery is required; handling money or other valuables or even when such activity involves access to weapons, drugs or other dangerous substances.
Although less common in Portugal (where it is more common to set up screening programs in collective agreements or through internal regulations), these types of mechanisms show an actual due diligence process by all parties involved. Drug testing may be warranted based on workplace safety needs and will depend on the nature of the job. However, a line must be set: do not conduct unwarranted, uninformed, and inappropriate testing. This is also very important because of the medical analysis (physical or psychological). Please note that access and registration to/from medical information can only be performed by a company doctor and the doctor may only notify the employer of the worker’s able/unable status.
Japan: Nobuhito Sawasaki (Anderson Mori & Tomotsune); Spain: Sonia Cortes (Abdón Pedrajas | Littler); Costa Rica: Marco Esteban Arias Arguedas (BDS Asesores Jurídicos SA | Member of Littler Global); Germany: Thomas Griebe (Vangarde | Littler); South Korea: Hoin Lee (Kim & Chang); Portugal: David Carvalho Martins (DCM | Smaller)