The Occupational Health and Safety Act requires employers to remove from the workplace any employee who is under the influence of alcohol, narcotics, toxic substances or psychotropic drugs. While working under the influence of such substances is prohibited under this law, it does not specify how an employer should verify whether an employee is intoxicated.

This spring, the Data Protection Inspectorate (AKI) proposed to the Ministry of Social Affairs and the Ministry of Economic Affairs that the law be amended to include a clear legal basis for such testing. The agency argued that identifying intoxication in the workplace is essential for reducing the risk of occupational accidents and ensuring a safe working environment.

At the end of last week, Seili Suder, head of the labor relations and work environment department at the Ministry of Economic Affairs and Communications (MKM), sent a letter to AKI Director General Pille Lehis confirming that the ministry is drafting amendments to the Occupational Health and Safety Act. The planned changes would include a legal basis for testing employees for intoxication.

"We will submit the draft for coordination and public comment in the fourth quarter of 2025," Suder added.

Before Midsummer, the AKI director general wrote to the ministries noting that employers had raised concerns with both the Labor Inspectorate and AKI about their limited ability to verify employee intoxication in practice.

According to Lehis, some employers already use breathalyzers to check for alcohol consumption. However, since intoxication is considered a health condition, testing for it involves processing employees' health data, which constitutes an intrusion into their privacy. Therefore, such testing should be carried out on a clear legal basis.

"Health data, by its nature, must be protected much more carefully than regular personal data. Moreover, special attention must be given when processing health data, as any potential breach of privacy may have a significant harmful impact on the individuals concerned," Lehis said.

She noted that while it is a common belief that employers may test for intoxication with an employee's consent, in the context of employment relationships this is not considered an appropriate basis. Employers are in a position of power and it cannot be guaranteed that consent is truly voluntary. Additionally, employees have the right to withdraw their consent at any time.

"Even if an employer can prove that an employee's consent was genuinely given voluntarily, the inspectorate finds that consent is only appropriate in exceptional cases where providing or withholding it has no negative consequences for the employee. For example, this might include filming in the office or using images on an intranet — situations that are unlikely to affect the employment relationship," Lehis explained.

AKI therefore considers it essential for intoxication testing to be clearly regulated by law. It is especially important that testing procedures are transparent and precise, and that tests are carried out based on justified concerns, taking into account the nature of the specific job.

"The best solution would be to establish clear regulations that balance employers' obligation to ensure workplace safety with employees' right to privacy and that ensure intoxication testing methods comply with the principles of personal data processing," Lehis said.

The Data Protection Inspectorate's proposal has also received support from the Chamber of Commerce and Industry. Director General Mait Palts has previously stated that employers often encounter situations where not only alcohol, but also narcotics and psychotropic substances pose a threat to a safe work environment.

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