Several recent developments require companies with at least 20 employees in France to update their current internal rules: the new discriminatory criterion (i.e. the ability to speak another language) recently added by law to the list of prohibited ones, the so-called “Sapin Law II” which introduced legal protection for whistle-blowers and the obligation for employers to implement a specific procedure to record disclosures (once the implementation Decree is adopted), and the practice of saliva testing and/or breathalysing of employees.
Regarding saliva tests, the Supreme Administrative Court (Conseil d’Etat) recently issued in Ministry of Labour v. SAS Sud Travaux on 5 December 2016 a decision which offers scope for balanced and pragmatic solutions for employers, but which contrasts sharply with the Labour Authority’s position on the subject.
In this case, the Labour Authority had requested the company Sud Travaux to amend its internal rules setting out for its staff the possibility of saliva tests to detect the consumption of illegal drugs. It considered that only an occupational doctor could perform those tests and that the results were subject to medical secrecy, so that punishing employees on the basis that they had tested positive in any other circumstances was illegal.
On the contrary, the Conseil d’Etat allowed companies to conduct saliva tests on their own employees, subject to certain conditions and without the presence of the occupational doctor. This applied where those staff had roles in which their being under the influence of drugs would pose a great danger for themselves and others, in order to detect any use of drugs and sanction them in the event of a positive result, provided that the sole purpose of the test is, by an immediate reading of the result, to reveal the existence or the recent consumption of proscribed drugs.
The results of this test are not protected by medical secrecy, but the employer (or its agent or representative) must still comply with strict professional secrecy.
The employee who has been tested is entitled to ask for a medical second opinion, any cost of that process being borne by the employer.
The Supreme Administrative Court recommends that the employer or the manager conducting such a test should be assisted by a witness. A positive result will allow employers to contemplate disciplinary sanction up to dismissal.
We highly recommend that companies employing employees holding safety-sensitive positions (construction, public works, clinics, security companies, transportation, etc.) should review the drafting of (i) their internal rules, and clearly identify in them the job positions that may be controlled this way, and (ii) the employment contracts for these employees to incorporate express reference to the right to require a test and the consequences of its being refused or failed.