No dismissal following employee positive drugs test for cannabis

In the HR world, drugs and alcohol tests have been stirring up feelings for quite some time now. Are employers allowed to test or not? Can they be helped by the arbodienst? And will an additional legal basis finally emerge? 

At the end of 2024, a letter to Parliament was published with reference to a study into alcohol and drugs in the workplace, commissioned by the Ministry of Social Affairs and Employment, and back in 2020,  strenuous attempts were made to make alcohol and drugs tests in the workplace possible for more companies and sectors. 

Nevertheless, drugs and alcohol tests remain prohibited for the greater part of employers. They are only allowed for certain professions in the shipping, railways and aviation sectors. Many employers struggle with the dilemma of wishing to safeguard security of employees and their colleagues and being confronted with incidents as a result of alcohol and drugs use, while they are not allowed to test their staff. This is especially a problem in sectors where dangerous substances are handled and in manufacturing companies, and/or where dangerous machines or forklift trucks are frequently worked with. 

Last month, an interesting ruling of the Court of Limburg was published about an employer who engages in the foundations for offshore wind parks and had an employee tested for cannabis. Due to the type of work, a zero tolerance policy is in place for alcohol and drugs. Ilse Baijens and Ravi van den Boomen wrote an annotation to this ruling. Please find a summary below. The end of this article provides a list of useful tips.

An employer had submitted an employee to an unannounced drugs test performed by an external company. The employee tested positive for cannabis. The employee said that this was because he had been smoking weed the previous evening. His colleagues declared that they could tell the employee was still under the influence. The employer requested the Subdistrict Court to terminate the employment agreement. 

The Subdistrict Court ruled that the saliva tests fall under privacy laws, including the GDPR, and that there is no legal basis for the processing of the saliva tests. The evidence had therefore been obtained unlawfully. In employment law, unlawfully obtained evidence can in principle be used by the courts. 

In this case, the Subdistrict Court held that it could not be used, because there were special circumstances, such as the reliability of the saliva test being debatable. It did not follow clearly from the test whether someone was still under the influence. This can only be checked with a blood test. The Court also held that the remaining evidence was not sufficient to assume that the employee was indeed under the influence of cannabis. 

In short, there was insufficient evidence and therefore the employer's request was denied. The employee remained employed. 

Drugs and alcohol tests remain prohibited in the workplace. Nevertheless, we can conclude from this ruling that if the employer had acted differently, the court might have considered the evidence in its opinion after all.

If you are an employer that does use drugs and alcohol tests in the workplace despite the prohibition, please consult one of our specialists first. After all, the risks when these rules are breached are no joke. If tests are used anyway, at least observe the following conditions:

• Have the tests performed by an external specialised party, preferably an arbodienst
• Only test if that is the only option, e.g. if you have a concrete suspicion and testing is the only way to establish the truth. Random testing is not allowed.
• Only test after you have confronted the employee with the suspicion. Describe what you see and smell (e.g.: speaking with a slur, red eyes, failure to respond, excessive sweating, a smell of weed, etc.), and ask the employee whether they are under the influence. If the employee admits this, there is no need for testing.
• Give employees the chance not to cooperate in the tests.
• Observe the privacy rules when processing the result you receive from the external party/ the arbodienst. Do not retain the result any longer than necessary and make sure that only a limited number of people within the organization are familiar with the result (e.g. only the HR assistant).
• Should the employee prove to be under the influence, remove the employee from the workplace and escort the employee safely home.