Saliva tests for drugs in the workplace: 7 questions to understand everything

The use of narcotics poses risks to worker safety.

Being under the influence of illegal substances can lead to behaviour that is incompatible with doing your job safely. The lack of concentration or reflexes required to carry out the employee's activity is likely to expose people (the employee himself, his colleagues or third parties), as well as property, to danger.

Employers are also liable for damage caused by employees under the influence of narcotics. In addition, employers have a general health and safety obligation.

Controls can be put in place to limit the risks in this respect.

Let's look at how.

1/ The employer's fundamental obligation to ensure the safety and protect the health of employees

Employers have a duty to ensure the health and safety of their employees. This obligation, set out in Article L.4121-1 of the French Labour Code, is one of the essential foundations of any salaried employment relationship. It is general and must be respected by all.

At the same time, employees also have their own obligation to ensure their own safety and that of their colleagues, resulting from the provisions of article L. 4122-1 of the Labour Code.

In this context, it may be advisable to set up a system for monitoring drug use in the company in order to check employees' ability to carry out their work properly and, above all, to do so in complete safety for themselves and others.

While the principle is clear, and the objective legitimate, the fact remains that the employer cannot decide to introduce a monitoring system without complying with a minimum set of rules.

2/ How can drug use be checked?

In the absence of a laboratory, drug use can be checked using saliva tests.

The sole purpose of a saliva test to detect narcotic substances is to reveal, by means of an instant reading, the existence of recent consumption of a narcotic substance. This method generally only detects the main known drugs and drug families.

Once the test has been carried out (by placing the dedicated tip under the tongue of the person concerned), the saliva test gives a "positive" or "negative" result; this is known as a "qualitative method" of screening.

It is not a medical biology test; its sole purpose is to verify the presence or absence of drugs in the body.

3/ Who can monitor drug use?

While the question may have arisen as to whether the employer could set up such a system within the company, the debate seems to have been closed for some years now.

In 2011, the French National Consultative Ethics Committee issued an opinion stating that saliva tests in the workplace should only be used and read by a health professional, and interpreted by the occupational physician. The employer could not therefore be the holder of such a right ((Opinion of 2011 "Use of alcohol, drugs and addiction in the workplace. Ethical issues relating to their risks and detection").

Relying in particular on this opinion, the Marseille Court of Appeal handed down a decision along these lines in a case involving a company that wished to amend its internal regulations by inserting a clause authorising the employer to introduce saliva tests (Marseille CAA, 21 August 2015 no. 14MA02413).

However, the debate was quickly brought to a close by the Conseil d'Etat, which overruled the Marseille Administrative Court of Appeal and ruled that the employer could itself carry out saliva tests on employees whose position is said to be "hypersensitive to drugs and alcohol" (Conseil d'Etat, 5 December 2016 n°394178).

This possibility for the employer can be compared with that of carrying out alcohol tests for employees in high-risk positions (Conseil d'Etat, 1 February 1980 no. 06361). Article R.4228-21 of the French Labour Code states that "it is forbidden to allow intoxicated persons to enter or remain in the workplace".

4/ Introduction of saliva tests by internal regulations or memorandum

The introduction of in-company saliva tests is subject to a certain number of rules which, because they relate to the health and safety of employees and are of a general and collective nature, must be set out in :

• Internal regulations for companies with at least 50 employees wishing to introduce this system;
• A memorandum in companies not covered by internal regulations.

It should be noted that in companies with at least 50 employees, the CSE may even use the services of an expert under certain conditions (Article L. 2315-94 of the Labour Code).

5/ Conditions governing the validity of the system

Saliva tests can only be validly implemented if certain conditions are met.

• Firstly, the scope of the system must be restricted. The Conseil d'Etat (as well as the Ethics Committee in its time) has specified that these tests may only be carried out on employees whose drug use constitutes a particularly high risk in relation to the position they occupy.

In this way, not all employees can be targeted; it may even be recommended to specify in the internal regulations the list of positions concerned by the said tests, or to refer to the Document unique d'évaluation des risques professionnels (DUERP), which must have listed the positions at risk.

• PEmployees also have the right to a second medical opinion. The Court of Cassation has provided for this right in view of the risk of error in the results of these tests (Cass. Soc. 22 May 2002 no. 99-45.878). Today's tests are highly reliable, but errors are still possible. Positivity times vary depending on a number of factors: the detectability of a drug varies greatly depending on how it is used by the consumer.

The right to a second opinion must be included in the internal regulations and should ideally consist of a medical second opinion (i.e. a blood test). This must be funded by the employer.

• Lastly, while the test results are not covered by medical confidentiality, they are subject to professional secrecy. This means that the test result is known to the employer and line manager, who are themselves subject to professional secrecy.

The same does not apply, however, to the second test, which is carried out in a laboratory and cannot be accessed by the employer, as long as it is carried out by a qualified medical practitioner.

6/ What are the consequences of a positive saliva test?

The Court of Cassation has accepted that the employer may establish the employee's fault on the basis of the result of an alcohol test(Cass soc, 22 May 2002 no. 99-45.878).

In 2016, the Conseil d'Etat agreed with the position of the Cour de cassation and considered that the results of tests, this time saliva tests, could justify disciplinary sanctions against the employee.

Thus, when the salivary test is positive, the employee is exposed to the risk of a disciplinary sanction, which will have to be chosen from the scale of sanctions provided for in the internal regulations or the memorandum that may be in force in the company.

For example, serious misconduct was found against a flight attendant who had taken drugs between two flights, on the grounds that he had failed to comply with the obligations set out in his employment contract and had put passengers at risk (Cass. Soc, 27 March 2012 no. 10-19.915).

The same solution was applied to an employee who caused an accident with a company vehicle while under the influence of drugs (CA Douai, 26 October 2012 no. 11/04347).

Even if the principle of "zero tolerance" tends to apply, care must be taken when choosing a sanction, which must be appropriate to the employee's situation, and in particular to his seniority and any disciplinary history, or to his position or the situation in which the employee was found to be positive.

It should be noted that in the case of alcohol consumption, the judge was able to find simple misconduct by taking into account the seniority of the employee who was drunk at the place and time of work, even though his position involved driving a vehicle (Rouen Court of Appeal, 28 October 2021, no. 19/01513).

7/ Does the employee have the right to refuse the saliva test?

Yes, the employee always has the option of refusing a saliva test.

However, if the system has been put in place on a regular basis, then the employee is taking a risk by refusing the test, as it may be stipulated that refusal to take the test alone could be grounds for disciplinary action.

In this respect, it should be remembered that it is a matter of principle that refusal to comply with the internal regulations constitutes misconduct resulting from a breach of obligations arising from the employment contract (DGT Circular no. 2008/22, 19 November 2008).

It has also been ruled that an employee's refusal to submit to an alcohol screening test that the employer was entitled to use constitutes a breach of the obligations arising from the employment contract and serious misconduct (CA Metz, 3 June 2013 no. 11/01987).

On the other hand, if the system has not been put in place on a regular basis, then the disciplinary sanction may not be valid: an employee's refusal to submit to a urine test not provided for in the internal regulations does not constitute misconduct (Montpellier Court of Appeal, 15 March 2023 no. 19/06750).

1. The employer's fundamental obligation to ensure the safety and protect the health of employees
2. How can drug use be checked?
3. Who can monitor drug use?
4. Introduction of saliva tests by internal regulations or memorandum
5. Conditions governing the validity of the system
6. What are the consequences of a positive saliva test?
7. Does the employee have the right to refuse the saliva test?