The Labour Code in France does not allow regular testing of employee alcohol levels, to establish their ability to work. On the contrary, case law applies strict conditions to such tests requiring that, to be lawful, they are clearly spelled out in internal regulations, are justified by the nature of the activity being undertaken by the employee and are subject to the employee’s right to refuse to be tested.
An alcohol ban
Since 4 July 2014 (Decree 2014-754 of 1st July 2014), employers have been able to prevent any use of alcohol by employees in certain circumstances. The decree does not allow employers to impose a general prohibition upon employee consumption of alcohol by simply stating this in internal regulations. However, where an employee’s health and safety is perceived to be at risk, they may assess the individual circumstances and whether a complete prohibition is a proportionate response to protect the employee’s health and safety.
Compliance with internal regulations
Recent case law (Supreme Court, 2 July 2014, n°13-13757) has considered the testing of employee alcohol levels. The court ruled than an employer must comply strictly with the provisions of its own internal regulations and any conditions these impose upon such tests.
In this particular case, an employer dismissed an employee for gross misconduct following a positive test for alcohol. However, the internal regulations of the company provided that a test was possible only if the employee was in an apparent state of inebriation.
Since these internal regulations did not allow dismissal merely because an alcohol test was positive and the employer had failed to establish any, “apparent state of inebriation”, as its own regulations required, the Supreme Court decided that the dismissal was not justified.
Where possible, we would advise that employers ban alcohol from any parts of the business or services where its effects could impact upon the employees’ health and safety. Moreover, internal regulations should be reviewed. Where there is provision already for alcohol testing, it should be made clear that disciplinary sanction can result from establishing either blood- alcohol levels or, also, from identifying apparent inebriation, not necessarily both.