Over the course of the World Cup, we have been publishing our own matchups, comparing various aspects of labor and employment law in some of the participating countries. Parts One and Two of this series examined timeouts (vacation) and sick leave entitlements. Part Three’s goal was to provide an overview of general workplace health and safety requirements. On the eve of Thanksgiving in the United States, when food and drink are top of mind, we now field this question: May an employer require drug and alcohol testing?¹

Japan vs. Spain (December 1)

Japan

An employer in Japan is allowed to request that its employees undergo drug and alcohol testing to the extent that such testing is: (1) necessary for the employer’s special occupational purposes; (2) is conducted in a manner socially acceptable; and (3) is done with the express consent of each employee; however, an employer cannot force its employee to undergo drug or alcohol testing. If an employee refuses to undergo testing, such refusal may be grounds for disciplinary action by an employer only if a strong necessity for such testing exists due to the employer’s special occupational purposes. Note that drug testing is not generally conducted by employers in Japan. Alcohol testing may be more common than drug testing, but still is limited to certain occupations, such as drivers.

Spain

The law surrounding drug and alcohol testing is a bit more involved in Spain. The Constitutional Court in its judgment No. 196/2004 of 15 November 200426 issued guidance with respect to employee rights regarding drug tests. Based on this decision, the general rules regarding medical examinations, including drug tests, are as follows:

• The employer may submit employees to health surveillance at work from time to time or medical examinations where necessary given the risks related to the specific job. By implication, when the job involves a risk beyond the normal level, the employer’s right to enforce health checks is justified as long as the health check is proportional to the risk implied by the job.
• The general rule derived from the Work Risks Prevention Act is that these medical examinations require the employee’s consent.
• The employee’s consent is not required to enforce a health check where not submitting to the check would:
  
  • place the employee at risk;
  • place other employees at risk; or
  • place other people, such as clients or customers, at risk.
• Medical examinations, where necessary, must be proportional to the risks of the job and necessary to verify risk and safety levels.
• Doctors performing health checks are subject to obligations of confidentiality and maintaining the dignity of the employee.
• The employee is entitled to be informed of the results of these examinations.
• There is a general prohibition of using the results for discriminatory purposes (most notably, termination of an employment relationship).
• Disclosing the results of the health check is allowed only where necessary to allow those in charge of safety to take the required measures to comply with their duties subject to employee privacy rights and nondiscrimination obligations.

There is a risk that where drug tests are required for selection of employees, such a policy will be deemed to be discriminatory. A court decision approved a drug test both before and during employment and acknowledged it did not infringe employee rights on the grounds that the need to submit to such tests had been agreed through the company’s collective bargaining agreement. However, the result of such drug tests can only be used for the purposes of health and safety, and thus, if the employee is terminated for drug addiction, termination will be declared null and void given that the employer used health information for purposes other than health and safety.

Costa Rica vs. Germany (December 1)

Costa Rica

Drug testing by employers had been a divisive topic in Costa Rica. In April of 2020, however, the Constitutional Chamber of the Supreme Court of Justice, the nation’s highest court, held that employers have a right to take appropriate measures to protect their interests and their business needs, provided they comply with the law and protect the dignity of all employees. However, the employer should ensure that employees receive advance warning of the testing and that their participation is voluntary. Employers can still discipline an employee for refusing to undergo the testing if the employment contract includes an agreement to do so.

Rulings from the Constitutional Chamber of the Supreme Court of Justice are binding to all (except itself) and enforceable. The Ministry of Labor has issued guidelines consistent with the Constitutional Chamber’s ruling. Therefore, employers’ drug and alcohol testing practices must comply with that framework.

Notably, drug testing through bloodwork is illegal. Further, the General Law on HIV-AIDS prohibits any kind of blood tests for employment, unless expressly justified by a physician’s expert opinion. Thus, all doping and drug tests should be conducted by other methods, such as commercially available urine tests.

Germany

Generally, drug and alcohol testing can only be required where the employer has a justified interest in the results and the job in question demands this. This applies to accident-prone jobs such as a driver or machine operator. The scope of the testing should not exceed what is necessary to ascertain the suitability of the candidate for the job in question and whether they are able to perform the activities required by the job.

To the extent that personal data (i.e., any information relating to an identified or identifiable natural person) is processed, the GDPR applies and the processing of health data is then subject to very strict rules. Should personal data be processed without a legal justification or ineffective consent of the employee, high sanctions might be imposed and the employee might be entitled to financial compensation under data protection law.

South Korea vs. Portugal (December 2)

South Korea

An employer in South Korea may require drug and alcohol testing if the testing is part of the regular, annual, or bi-annual testing required under the Industrial Safety and Health Act. Under ISHA, an employer must conduct a medical examination of its employees for the protection and maintenance of the employees’ health. Such examination must be conducted bi-annually (i.e., every two years) for office workers, and annually for all other workers. The medical examination requirement applies to all places of business regardless of the occupation or the number of employees. Employers may not use the results of the medical examination for purposes other than for the protection and maintenance of employees’ health.

There is no explicit law governing pre-employment testing, but it would not be legally impossible to request alcohol or drug testing prior to signing an employment contract.

Portugal

The ability to require drug and alcohol testing in Portugal is limited. The employer can establish an undifferentiated, proportional, and reasonable drug screening program whenever such program does not include discriminatory criteria. It is generally lawful to not include an accredited occupational physician. The drug screening program needs to be justified, however (e.g., for the protection of the employee [self-protection] the employer, colleagues, or third parties (e.g., clients)).

For certain sectors (e.g., aviation, transit, maritime, pipeline or mining industries, civil construction), this type of proceeding will be easier to justify (and may actually be required). The same is true for certain positions and functions of the employee (depending on the contract and function/job description), such as, for example, when working with children, the elderly, the ill and disabled; when working with heavy machinery is required; when handling money or other valuables, or even when such activity implies having access to weapons, drugs, or other dangerous substances.

Although less frequent in Portugal (where it is more common to establish screening programs in collective bargaining agreements or through internal regulations), these types of mechanisms demonstrate an actual due diligence procedure from all involved parties. Drug testing can be justified depending on the need for safety at the workplace, and it depends on the nature of the activity. A limit must, however, be established: do not carry out unjustified, uninformed, and unreasonable testing. This is very important also because of medical analysis (physical or mental). Please be aware that such access and registration to/of medical information can only be performed by an occupational physician, and the physician may only communicate to the employer the status of the employee as fit/not fit for work.

Authors:

Japan: Nobuhito Sawasaki (Anderson Mōri & Tomotsune); Spain: Sonia Cortes (Abdón Pedrajas | Littler); Costa Rica: Marco Esteban Arias Arguedas (BDS Asesores Jurídicos S.A. | Member of Littler Global); Germany: Thomas Griebe (vangard | Littler); South Korea: Hoin Lee (Kim & Chang); Portugal: David Carvalho Martins (DCM | Littler)