The use of recreational drugs is a widespread phenomenon, and its impact on employees’ ability to perform their jobs is a topic of growing concern, regardless of the legal status of drug consumption. In addition to affecting the user’s overall health, drug misuse can heighten the risk of workplace accidents and negatively impact productivity. As a result, employers have begun to explore whether drug testing is a viable option and how it can be lawfully implemented.
As public policies diverge, with some countries moving toward legalization and others reinforcing prohibition with stricter penalties, employers face complex challenges. In this article, our experts from our German member firm Altenburg and our member firm, Suciu – Employment and Data Protection Lawyers in Romania delve into 5 key questions on how employers can address this sensitive topic in the absence of a clear legal framework. You can read it in more detail, HERE.
1. What are the legal regulations governing drug testing in the workplace?
GERMANY
Under German law, there are very few legal provisions regarding drug testing in the workplace, and these apply only to certain professional groups. For example, airlines with a registered office or branch in Germany are required to conduct random tests on pilots before they commence work to assess whether they are under the influence of alcohol or psychoactive substances. In the absence of specific legal provisions, the permissibility of drug tests is determined by general legal principles. Drug tests must be conducted under medical supervision. The specifics of how such tests are administered can be outlined in collective agreements or works agreements.
ROMANIA
In Romania, the legislation on drug testing is deficient, similar to the situation in Germany, with only a limited number of professional categories covered. As German companies, Romanian air carriers are required to conduct random drug testing of flight crew members both before boarding and following involvement in an aviation incident or any serious incident.
Unlike in Germany, Romanian employers can implement drug testing policies unilaterally, as long as they can demonstrate a legitimate and justifiable reason for doing so. Legal provisions impose a duty of care on employers, requiring them to ensure a safe working environment and to prevent employees from using certain equipment while under the influence, such as in the case of operating company vehicles.
Additionally, drug tests do not need to be administered exclusively by medical personnel, other roles can also be involved. In practice, usually, the Health and Safety Responsible or the Occupational Health Physician are appointed to conduct the tests, provided they receive proper training with regard to the testing procedures and the company protocols to be followed.
2. What legal challenges are commonly associated with workplace drug testing?
GERMANY
Applicable to both Romania and Germany, depending on the type of test and the medical procedures involved, drug tests either conflict with the constitutionally protected physical integrity of the person concerned (in the case of blood or hair samples) or, in the case of biometric and genetic tests (saliva, urine or stool samples), conflict with constitutionally protected privacy rights. Therefore, drug tests are only permissible to a limited extent, taking into account the constitutionally protected rights of the employees.
Furthermore, it should be noted that in Germany the consumption of drugs by employees in their free time generally cannot be prohibited or controlled by the employer. The consumption of alcohol and cannabis is legal in Germany. As long as the consumption in the free time does not impair work performance during working hours, employers cannot take action against such consumption. However, employees are required to stop any alcohol or drug consumption during their free time in a timely manner if there is an absolute ban on alcohol or drugs within the company, ensuring they are sober when they go to work.
ROMANIA
In contrast, Romania prohibits the consumption of all types of drugs, including cannabis (with the exception of medical use), and imposes criminal sanctions for violations. Consequently, employers have the authority to enforce strict no-drugs policy within their organizations. However, a significant challenge arises regarding whether employees who refuse to participate in these tests can be subject to disciplinary sanctions. In the absence of legal provisions or relevant case law, considering that the refusal is not directly linked to the execution of work tasks, sanctioning an employee for such a refusal is viewed as a high risk.
3. Can employers mandate drug testing in the workplace?
When determining the admissibility of drug testing in the workplace, a distinction must be made between drug tests conducted during the recruitment process and those during ongoing employment, as well as between suspicion-based and suspicionless drug tests.
- During the recruitment process: Whether an employer is permitted to order drug tests during the recruitment process has not been clarified by the highest court in Germany. However, it is generally assumed that drug tests are only permissible if there is a job-related reason, such as if the nature of the position poses a risk to the individual or others, and drug use could create a significant danger. In Romania, in the absence of explicit legal provisions, the implementation of drug testing is not deemed justifiable, particularly since a medical examination is required once a candidate accepts an employment offer.
- During ongoing employment relationship: In Germany, routine drug tests during an ongoing employment relationship, which are intended to clarify without cause whether drugs are being consumed (preventive drug screenings), generally cannot be ordered by the employer. An employee can only be required to participate in a suspicionless routine drug test through an explicit statutory provision or an agreement in the employment contract if the employer has a legitimate interest in such testing due to the hazardous nature of the job. In contrast, in Romania, random testing is permitted provided that legitimate reasons for such procedure are identified.
In both Romania and Germany, a drug test may be ordered if there are concrete indications of drug use by an employee that impairs work performance.
The conditions and procedures for drug testing in Germany can be regulated by collective agreements or works agreements. The works council has a right of co-determination if drug tests are ordered by general regulations of the employer and not only in individual cases.
Any examinations and drug tests that are ordered by the employer must be carried out by a doctor. Employees have the right to consult a doctor of their choice instead of the company doctor or a doctor commissioned by the employer to carry out the examination. In principle, the employer cannot prescribe a specific test procedure (e.g. blood sample) if other test procedures (e.g. urine, hair or saliva sample) also guarantee reliable results.
In Romania, employers are not required to consult with unions or employee representatives and can unilaterally establish the conditions for implementing drug testing. Additionally, drug tests can be conducted by company personnel, not only by doctors, provided they have received appropriate training.
In any case, in both countries, drug testing may only be carried out with the consent of the individual concerned.
4. What are the proper procedures for conducting drug tests in the workplace?
GERMANY
German recommendations
If an employer decides to order a drug test based on concrete indications of drug use that may impair job performance, the grounds for suspicion should be clearly specified and documented by the employer.
The employer may then order a medical examination, including a drug test. To do so, the employer must first obtain the employee’s consent to carry out the test. For the consent to be legally valid, it must be given voluntarily, free from any pressure or coercion. This means that the employee must be informed beforehand about the procedure, purpose, and potential consequences of the drug test. For documentation, proof, and data protection purposes, the consent should be given in writing.
The results of drug tests must be treated confidentially and used only for the specific purpose for which they were collected. Additionally, the results must be promptly deleted once they are no longer necessary.
ROMANIA
Romanian recommendations
If an employer decides to order a drug test based on concrete indications of drug use that may impair job performance, the grounds for suspicion should be clearly specified and documented by the employer.
While the testing procedure is based on the employee’s consent, it is not deemed necessary to document this consent in writing. The testing protocol should be communicated to the employee in advance and provide clear and specific information regarding the scope of the testing, the manner in which the procedure will be conducted and data protection measures. Furthermore, it is recommended that the procedure be carried out in the presence of at least two individuals to minimize the risk of abuse claims.
It is also necessary for the company to ensure that it has all the necessary means (infrastructure) to carry out the testing safely and efficiently (for example, to use only certified and calibrated testing devices and in spaces that do not expose the identity of the employee)
The results of drug tests must be treated confidentially and used only for the specific purpose for which they were collected. Additionally, the results must be promptly deleted once they are no longer necessary.
5. What actions can employers take if an employee tests positive?
GERMANY
German recommendations
If an employee refuses to take a legitimately ordered drug test or tests positive for drug use, various measures can be taken.
During the recruitment process, if an applicant either tests positive for drugs or refuses to take the test for a position involving hazardous tasks, the employer may reject the applicant based on the test result or refusal.
In an ongoing employment relationship, if a positive drug test and impaired work performance due to drug use occur, the employer may issue a formal written warning. The employer can also offer support, such as providing information on drug counseling services or therapy options.
If a positive drug test indicates that the employee is unable to fully meet their contractual obligations, a dismissal for reasons of conduct may be considered, provided that certain conditions are met.
If employees are visibly under the influence of drugs or test positive for drug use, the employer must immediately release them from their work duties and send them home, as long as there is a risk to their own safety or the safety of others in the workplace.
Under German law, Employers are not obliged to report positive drug tests to law enforcement authorities.
ROMANIA
Romanian recommendations
In the event of a positive drug test result, the company may consider two scenarios and analyze which is more feasible for the company: the scenario in which the employee is held disciplinary liable for violating internal drug regulations, or the scenario in which the company (additionally) supports the employee to stop drug use and improve the employee’s health.
Furthermore, the employer should provide employees with the option to undergo a second drug test at a medical facility to obtain a medical result, as other testing methods, such as those based on saliva or hair, are considered to have a higher error rate. Any costs associated with the second test should be solely borne by the employer.
The employer is not obligated to notify the police of any positive drug test result. However, under specific legislation, if the employer becomes aware of a drug user among their employees, they have the possibility to refer the matter to one of the medical facilities designated by the Ministry of Health, which will then act in accordance with the law.
AUTHORS
Teodora Paunescu is Senior Associate at SUCIU – Employment and Data Protection Lawyers, the Romanian firm member of Ellint. She is Member firm for Romania and UAE.
Lennart Willeke is an attorney at Altenburg, the German member of Ellint, based in Berlin.
He did Law studies in Münster Traineeship in Hamburg, Berlin and Tel Aviv
Please feel free to contact Teodora PaunescuPlease feel free to contact Claire Chesneau at her LinkedIn for questions regarding Romanian law and Lennart Willeke at l.willeke@altenburg.net for questions regarding German law.
