Alcohol at work: can the employer apply a zero tolerance policy?

A decision of the Supreme Administrative Court (“Conseil d’Etat”) of 8th July 2019 has overruled the decision of a work inspector (“inspecteur du travail”) who had rejected a zero tolerance policy regarding the consumption of alcohol during working hours for certain classes of employees in a company.

The case concerned a company specializing in the manufacture of automotive equipment which decided to revise its internal employee regulations to include a clause totally prohibiting the consumption of alcohol for certain categories of employee such as machine operators, lift platform users, electricians and mechanics.

By law the internal regulations must be reviewed and approved by the work inspector before implementation and during the review the work inspector decided that the employer could not totally prohibit the consumption of alcohol by these categories of employee.

The basis of the decision was that, as strange as it may seem, the French labour code (“Code du travail”) provides that “no alcoholic beverages, other than wine, beer, cider and perry [pear cider], are authorized in the workplace“. This was interpreted as meaning that employees have the right to consume the named alcoholic drinks. Based on this provision and the fact that an employer can only apply restrictions to employees’ rights taking into account the tasks to be performed and in a proportionate way, the work inspector ordered the employer to remove the provision from the proposed internal rules which was in its view too restrictive.

However, a law introduced in 2014 specifically allows the employer to ban wine, beer, cider and perry, when the consumption of these types of alcohol is likely to undermine the employee’s safety and physical health. On that basis, the Conseil d’Etat, decided that, given only certain hazardous positions were subject to the alcohol prohibition, such prohibition was proportionate to the goal sought by the employer, which was to protect the health and safety of certain hazardous jobs.

Accordingly, the employer was entitled to apply a zero tolerance alcohol policy for these positions and the provision in the internal regulations was perfectly legal.

In conclusion, a zero tolerance alcohol policy is allowed but only for those positions within a company where the employer is able to justify that the consumption of alcohol would pose a threat to the safety of employees.