Workplace accidents and drugs: liability, testing, and case law
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Work accident, screening, and company responsibilities.
Does a positive test automatically exclude a work accident?
No. When an accident occurs by reason of or during work, it is generally covered under the professional accident regime. To challenge this link, it is not enough to show that a substance was detected: the specific circumstances of the accident must be examined.
Case law has already accepted that cannabis use does not necessarily negate the professional nature of an accident occurring during the performance of a task. Each case is assessed based on its facts.
Can the employer sanction the employee?
A sanction may be considered when established facts reveal a violation of safety rules, especially in a position exposing the employee, colleagues, or the public to danger. Its validity depends on evidence, internal regulations, the employee’s role, the procedure followed, and the proportionality of the measure.
A rapid presumptive result should not be treated as absolute proof. The company must respect the guarantees provided, including the possibility to contest or confirm the result when applicable.
When is a saliva test possible in the company?
The Council of State’s decision of December 5, 2016, allowed the use of saliva tests for positions particularly sensitive to safety, under conditions. Screening cannot become general surveillance of all employees.
- the positions concerned must be objectively identified;
- the measure must be justified and proportionate to the risk;
- the procedure must be provided for within the applicable internal framework;
- the employee must be informed of their rights;
- the confidentiality of the result must be protected;
- a counter-expertise must be able to be requested according to the provided procedure.
Serious fault and inexcusable fault: two different concepts
The employee’s serious fault
This falls under disciplinary law and may be invoked when the behavior makes it impossible to keep the employee in the company. A serious endangerment in a sensitive position can be taken into account, but the qualification is never automatic.
The employer’s inexcusable fault
This may be sought when the employer knew or should have known of the danger and did not take the necessary measures to protect the employee. The absence of an up-to-date DUERP, adapted rules, or response to a known risk can weaken the company’s defense.
What to do immediately after an accident?
- provide aid and secure the site;
- declare the accident within applicable deadlines;
- record only observable facts;
- apply the internal procedure without public accusation;
- preserve the confidentiality of health data;
- involve human resources, the prevention and occupational health service, and, if necessary, legal counsel;
- analyze organizational causes and update the DUERP.
Prevent before the accident
A serious policy combines information, manager training, identification of sensitive positions, temporary removal procedures, replacement possibilities, and referral to health or addiction professionals.
AMA Prévention supports companies in choosing tests and training for their use. Validation of internal regulations and protocols remains the responsibility of the company and its advisors.
