Checking for use of alcohol, drugs or medicines

Substantial public interest

There are conceivable situations in which general security may outweigh the privacy of your employees. For example, if your employee is a skipper, pilot or railway engineer. These situations are explicitly mentioned as exceptions in the law.

Legal exception to the ADM test

For the time being, it is only permitted to test for alcohol, drugs and medicines for certain professions under the Shipping Act, Railway Act, Local Railway Act and Aviation Act. These acts are bundled in the Alcohol, Drugs and Medicines (Road Traffic) Decree.

If you do not fall under one of the exceptions in this decision, you are not allowed to administer an ADM test among your staff.

ADM test conditions

If you fall under one of the exceptions and are therefore allowed to test for the use of alcohol, drugs or medicines, you must take appropriate measures to protect the fundamental rights of your employees, such as:

• do not simply test all your employees;
• do not collect more personal data than necessary;
• secure the data properly.

Under current legislation, only authorised officials or persons designated by the minister may administer an ADM test.

No legal exception

If one or more of your employees have a high-risk position and you would thus like to take ADM tests, but this position is not specifically mentioned as an exception in the decree, you may not administer ADM tests among these employees.

This also applies to people who are not directly employed by you, but who do have to come to your site to do their work.

It is up to the legislator to decide whether checks are indeed desirable for certain high-risk positions and whether there should be a legal exception for this position.

Health data during ADM test

The data generated by an ADM test are data about a person’s health. According to Article 9 of the GDPR, health data are all data about a person’s mental or physical health and not only data that fall under medical confidentiality, such as the nature, cause and treatment of a disease.

It does not matter whether the data comes from continuous monitoring or a snapshot, such as an ADM test. Data from a snapshot also provide information about a person’s health and are therefore health data.

Health data are a special category of personal data. It is usually prohibited to process special categories of personal data, unless there is a legal exception.

One of those exceptions is that the processing is necessary for a substantial public interest and that Dutch law states that the processing is permitted. The Alcohol, Drugs and Medicines (Road Traffic) Decree is the law that states that an ADM test is permitted in certain situations.

Consideration of the legislator

By imposing strict requirements on the processing of health data, the legislator forces you to carefully balance your interests and the fundamental rights of your employees. The legislator has deliberately established a closed system of situations in which ADM tests are permitted under a number of conditions.

It is therefore up to the legislator to expand this system where necessary, for example, by adding exceptions to the prohibition and/or adjusting the conditions.