The Dutch Data Protection Authority published an article in which it again affirms that testing employees on alcohol, drugs or medicines can only be performed if there is a specific legal basis to carry out such tests. Earlier, the Dutch DPA gave an explanation on some Q&A’s on this subject. The Dutch DPA states that the risks of a possible breach of privacy must be minimalized and the tests are therefore only permitted under strict conditions.
In summary, the Dutch DPA emphasized once again that testing employees at work on alcohol, drugs or medicines is in principle not allowed unless:
- there is a specific legal basis to carry out such tests, such as in cases specifically mentioned in the Decision on alcohol, drugs and medicines in traffic (Besluit alcohol, drugs en geneesmiddelen in het verkeer), e.g. for pilots or train drivers; and
- appropriate measures are taken to protect the fundamental rights of the employees and to minimize the privacy risks; and
- the strict conditions for the processing of special categories of personal data (ex. Article 9 GDPR) are met.
The Dutch DPA has indicated that if a specific legal basis to carry out such tests for certain job positions is not available yet, employers should address this with the legislator. It is then up to the legislator to then decide whether to introduce such specific legal basis.