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How do you react to an employee, apparently under the influence of drugs or alcohol?
- When faced with an employee who appears to be drunk or under the influence of drugs (unusual behavior.
- Inconsistent comments.
- Wobbly approach.
- State of excitement.
- Etc.
- ) and who can no longer guarantee his job safely.
- It is recommended that other employees (if any) alert the employer.
- It is up to the employee to remove the employee from his or her position and call the work doctor (to check if the employee’s behavior is not due to a health problem and if he needs emergency care It is not advisable to send the employee home alone.
- Given the risk of a travel accident.
- It is better to take him home after a rest period.
- By confiding it to a nearby person.
- Or calling emergency services.
- If the employee’s condition is serious.
- The employer may request an employee’s visit to the occupational doctor upon return.
What can be the consequence, in terms of capacity, of an addictive practice?
The work doctor who proves that the employee is under the influence of alcohol or drugs may decide on his suitability to take up his post taking into account the characteristics of this position (see article R 4624-42 of the labour code) and the consequences of this position. drug or alcohol use for their safety and that of other employees. Depending on the hazard of the situation, and after having exchanged with the employer, the work doctor may:
Given medical confidentiality, the employer does not know the reasons for the employment doctor’s opinion, which will be recorded in the employee’s occupational health medical history.
Can the employer fire an employee whose driver’s license has been revoked?
We have already had to deal with this on those same pages, in fact, the loss of an employee’s driver’s license, in a private area, is often problematic for the normal exercise of his professional activity.
In this case, the Court of Cass. soc , 3. 05. 2011 No 09-67. 464; Cass. soc, 10. 07. 2013 No 12-16. 878; Cass. soc, 5. 02. 2014, No. 12-28. 897) rules out any possibility of punishing an employee for the loss of his driver’s license, even if he performs functions requiring driving a vehicle. to be regarded as a disrecognise of the obligations arising from the employment contract, so the route of dismissal is closed on disciplinary grounds.
The rest is that of dismissal for personal reasons, based on objective disorder in the operation of the company, having to include in the letter of dismissal the disorder caused to the company and the inability of the worker to carry out his employment contract. The correct performance of the employment contract does not require the employee to use a vehicle at all times, the judges will tend to consider that the withdrawal or suspension of the licence does not justify dismissal (Cass. soc, 22. 10. 2008 no 07-42. 667 ).
Concealing the withdrawal of an employee’s leave for violations committed outside of business hours, while continuing to drive a vehicle in the performance of its duties, constitutes a misreaction that may justify dismissal (Cass. soc, 29. 09. 2014, No. 13-13. 661 The employer may, when contracting it, request the employee to submit the original of his leave in order to be able to take a copy and have a certificate of honor signed to that employee, who undertakes to inform the employer of the loss of validity of this leave (temporary or permanent).
Under what conditions can the employer’s civil liability be incurred if the worker is the victim of a work accident while under the influence of illicit substances?
It should be remembered here that the employer is responsible for an obligation to “safety of results”. Failure to do so results in the characterization of an inexcusable fault when the employee was aware of the danger to which he had exposed the employee in the event of an accident and did not take preventive measures to preserve him (Cass. ass plen, 24. 06. 2005. , no. 03-30. 038). In this context, the assessment of occupational hazards and risk situations will serve as an “radiography” to highlight the employer’s prevention deficiencies.
It is important to note that the employer’s fault for the use of illicit substances can only be considered decisive in the occurrence of the accident if the organisation of prevention systems by the employer is irreproachable, the employer may still sanction the employee in a disciplinary framework.
Can the employer be criminally liable in the event of an alcohol-related accident?
The liability of the employer’s legal and / or physical person could be involved in criminal matters, in particular for “failure to assist a person in danger” or “crime of injury or manslaughter” (in the most serious cases). This will be the case, if it is found that the latter either committed a lack of recklessness, clumsiness, inattention or that a security obligation provided for in the law was not fulfilled. or the regulation. The employer will not be able to hide behind the recklessness, the alcoholic state or the empire of narcotics of the employee. “The absence of the employee does not eliminate the personal absence of the employee (s) from the management” (Cass. crim, 09/30/2003, n ° 03-81. 554). The criminal chamber of the Court of Cassation thus confirmed the conviction of a general director, an executive and a guard of a company for not providing assistance. In fact, the company had organized an end-of-the-year meal within its facilities and outside of working hours. An employee died on the road with 1. 9 g of alcohol in his blood. Despite the advice of a manager and a guard not to take the road. The CEO was sentenced even though he abandoned the meal rather quickly and did not see his employee in a drunken state. The Court considered that it was responsible for evaluating and controlling alcohol consumption in the workplace (Cass. crim, 5. 06. 2007, n ° 06-86. 228).
Can the supervisor and co-workers be blamed for not reporting a colleague who is addicted or who has over-consumed illicit products?
At the criminal level, and in the light of the above, it is likely that the responsibility of the “manager” and/or colleagues will be incurred if a serious lack of carelessness is established against him. “and see” a situation in which one of his colleagues is very alcoholic or drugged, or even depends on the use of these substances, could put him in a criminal situation in the event of an accident. Similarly, and if disciplinary rules are clearly enacted, the employer could sanction the manager who fails to comply with the standards of health protection, occupational safety. Protecting employee health is an argument to which judges are sensitive. The Court of Appeal tends to consider that “knowing” in the organization of work has room for manoeuvre to curb behaviors that may be thought to be detrimental to the worker himself or to the workers’ collective.