Enacted in the beginning of 2015, Law 13,103 introduced new rights and rules for professional drivers, including a drug testing requirement. In November 2015 the Ministry of Labour and Employment issued rules on drug testing (Ordinance 116/2015) which will come into force in March 2016.

Ordinance 116/2015

General rules

According to the new rules, all professional drivers involved in road passenger transport and road cargo transport must undergo drug testing. Drug tests must be performed both before hiring and on termination. In addition, tests must be able to detect any psychoactive substance consumed at least 90 days before the date of examination.

Under Law 13,103/2015, employers can set out a drug testing policy, provided that employees have free access to its content and that it does not conflict with labour and employment laws.

The tables below set out the parameters for drug assessments.

Click here to view the table.

Drug tests are valid for 60 days from the date of the examination.

Additional rights and rules

Ordinance 116/2015 provides that drug tests must not:

  • be part of a company's occupational health and medical control programme;
  • be provided by means of occupational health certificates; or
  • be linked to employees' fitness to work.

The Ministry of Labour and Employment has imposed these restrictions in order to preserve employees' privacy.

Toxicology reports must include all procedural stages of the laboratory analysis (ie, decontamination, extraction, screening and results) and be issued by certified laboratories. The report will be delivered to the employee, who has 15 days to present it to his or her employer. If the employee disagrees with the results, he or she can request a re-examination.

All information contained in a drug test is considered confidential. Employers must not disclose results to third parties – in particular, to other employees. If they do, the employee may be entitled to compensation.

Comment

According to the Ministry of Labour and Employment, in 2014 15% of work-related accidents involved professional drivers. Another study conducted by the Labour Prosecution Office and the Federal Highway Patrol indicated that 33% of professional drivers involved in road cargo transport used drugs – in particular, cocaine.

The new law and ordinance aim to tighten regulations and create a better health and safety framework for professional drivers. In this sense, drug testing may help employers and employees to avoid labour accidents and identify and provide adequate treatment for drug-addicted employees.

Employees who refuse to undergo drug testing may be dismissed with cause. Employers must ensure that their policies comply with the law before dismissing an employee.

For further information of this topic please contact Domingos Antonio Fortunato Netto or José Daniel Gatti Vergna at Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados by telephone (+55 11 3147 7600) or email (dfortunato@mattosfilho.com.br or jvergna@mattosfilho.com.br). The Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados website can be accessed at www.mattosfilho.com.br.

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