Dealing with alcohol and drug use in the workplace remains a sensitive issue. Employers face the challenge of ensuring a safe working environment while respecting the privacy and rights of their employees.
Although CLA no. 100 has mandated a preventive alcohol and drug policy since 2009, its implementation raises complex legal and practical questions.
The obligation to have a policy
CLA no. 100 obliges employers to include a statement of intent in their policy, indicating how they intend to deal with alcohol and other drugs in the workplace. The well-being of employees is central to this, as laid down in article 5 of the well-being law of 4 August 1996.
The emphasis is on preventing risks and promoting well-being. However, the drafting of rules and procedures must be done carefully, with respect for legislation and proportionality.
Alcohol and drug testing: a pitfall for employers
Although a preventive policy may include alcohol and drug testing, this is not encouraged. External prevention services advise employers to avoid this route, as such tests have several limitations. For example, most tests focus on intoxication rather than functioning, and certain drugs can remain detectable long after use without affecting performance.
Tests may only take place under strict conditions: they must be proportionate, adequate, and relevant. Moreover, they constitute an interference with privacy, which requires assessment against the principles of legality, finality, and proportionality. Sanctions cannot be based on a policy that relies exclusively on testing. The internal work regulations must contain clear rules and consequences, with respect for employee privacy.
In addition, there are some specific points of attention for employers who wish to conduct alcohol and drug tests:
- Indication, not certainty
The tests should only give a positive or negative indication, but do not offer absolute certainty. This means that the test does not measure detailed quantities of the substances in the body, but merely indicates whether or not the employee is under the influence. - Outside well-being legislation
A&D tests administered by the employer themselves fall outside the scope of well-being legislation. This means that these tests are not subject to the strict rules normally applicable to medical examinations within the work environment. - Alcohol tester with colour codes
Employers can conduct tests with specific alcohol testers that use colour codes to indicate whether an employee is safe to work. A green colour means the employee is safe to continue working, while red indicates an unsafe situation. - Administering tests themselves
Under the right conditions, the employer may administer alcohol tests themselves. This is only possible if the tests meet the required proportionate and legal standards, and the employer adheres to the correct procedures for carrying out these tests.
However, it remains important that employers are aware of the legal and ethical implications of testing. Testing should not be the basis for disciplinary measures, and the employee's privacy must always be guaranteed.
The role of the occupational physician
The occupational physician has a unique position in this debate. As a neutral and independent party, they are responsible for health surveillance within the well-being law. They can perform tests, but only for specific functions with increased risks and exclusively to assess an employee's suitability. The results are processed strictly confidentially in the medical file, and the employer only receives an indication of (un)suitability. The employer cannot ask the occupational physician to perform tests.
The occupational physician also plays an important role in providing assistance. Through conversations and structured questionnaires, such as the Audit-C, they assess the severity of use and refer employees to their general practitioner or specialized institutions. In some cases, the occupational physician may decide that temporary unsuitability is necessary, especially for safety-critical functions.
A preventive approach is crucial
It is clear that alcohol and drug policy must go further than conducting tests. Training and education, the establishment of rules, procedures for problematic behaviour, and assistance are the pillars of an effective policy. Tests are merely part of a broader framework and should not become an end in themselves. The external service can help you set up your policy.
Conclusion
Implementing an alcohol and drug policy requires a delicate balance between safety and respect for employee rights and is based on CLA no. 100. Employers must strictly comply with legislation, including restrictions on testing. The occupational physician has a supporting and assisting role in this and cannot or may not cooperate with employer-initiated tests.
Prevention and well-being must be central. A well-considered policy not only provides a safe workplace but also contributes to a constructive and respectful interaction with employees.
Opinion piece by Dr. A. Verhoeven - Director medical supervision
References
- Employers who wish to implement testing should best read the work of Lydian Lawyer Isabel Plets “Dealing with alcohol and other drug use in the context of work: the legal rules”, available for download on the VAD website.
- CLA no. 100 of 1 April 2009 concerning the implementation of a preventive alcohol and drug policy in the company: implementing an A&D policy is mandatory. A numbered CLA was published in the Official Gazette and has the force of law.
- Mahoux Law of 28 January 2003 concerning medical examinations carried out within the framework of employment relationships (B.S. 9.4.2003).
- Article 5 of the law of 4 August 1996 concerning the well-being of employees in the performance of their work (PDF, 554.21 KB) obliges the employer to take the necessary measures to promote the well-being of employees in the performance of their work. They must apply general prevention principles, such as preventing risks or combating risks at the source.
- Codex - Book I - Title 4 - Measures related to health surveillance of employees.
- Preventive alcohol and drug policy in the workplace | Federal Public Service Employment, Labour and Social Dialogue (belgie.be)
