The adoption of alcohol and drug control policies in the workplace has gained traction among companies concerned with the safety of their operations in Brazil. However, the implementation of toxicological and alcohol testing still raises important legal questions: how far does an employer’s power to prevent risks extend? And what about the employee’s privacy and intimacy?

The debate inevitably involves balancing the employer’s duty to protect collective health and safety in the workplace with the individual rights of employees.

Brazilian labor/employment laws are limited in this matter. It only regulates the case of professional drivers, for whom toxicological testing is legally required upon hiring and termination, with the right to a counter-test and confidentiality of results, as established by the Brazilian Labor Law (CLT) and Ordinance No. 612/24 issued by the Brazilian Labor Ministry (MTE).

Despite this, case law has evolved, especially in relation to high-risk roles or environments, establishing parameters and requirements that companies must observe.

In this context, recent decisions by the Labor Courts have upheld the validity of toxicological testing for employees, provided that technical criteria are met:

It is worth reiterating that the toxicological test was required of all candidates for rural positions, not just the claimant. It is noted that drugs can cause, among other effects, altered perception of reality, reduced reasoning ability, and hallucinations, making it imprudent to allow users to handle sharp tools in the workplace (as is the case with tools used in rural settings). Furthermore, the claimant agreed to participate in the prevention program for the abusive and improper use of psychoactive substances, as authorized on page 95, which is detailed in the policy on pages 99/249. Based on these grounds, I conclude that the procedure adopted by the employer aimed to protect the physical integrity of the employee and their coworkers. Therefore, the alleged unlawful act is not present, and the requested compensation is unwarranted. (TRT-15; Case File No. 00114835620225150117; Reporting Justice: Renan Ravel Rodrigues Fagundes; 7th Pannel; Publication Date: 08/11/2023)

The case records indicate that the toxicological test was conducted due to safety concerns related to the services performed at the company, including the operation of large machinery. As acknowledged in item 11.5 of the initial petition (page 33), the employer implemented a Chemical Dependency Monitoring Program for its employees, called “PROSA G.” It is important to note that the program went beyond mere toxicological testing and, through qualified personnel, sought to prevent and properly treat affected workers. (...) Although the nurse entered the restroom with the claimant, she stood behind him, having visibility only of his back while he collected the urine sample himself. (TRT-15; Case File No. 0012462-48.2017.5.15.0099; Publication Date: 25/01/2021)

It should also be emphasized that the tests were not the result of a surprise decision by the employer, but rather part of a systematically adopted practice applied to all employees. That is, not based on subjective or potentially discriminatory criteria—and notably, no such allegations were made. Although the claimant questioned the company’s random selection method, the evidence does not reveal any irregularities. A witness confirmed that periodic testing is a common practice at the company and that selections are made by lottery. Another witness, Thiago, explicitly stated: “People were selected by means of a lottery.” (TRT-9; Case File No. 0001575-07.2017.5.09.0411; Reporting Justice: Sueli Gil El Rafihi; 6^th Pannel, Publication Date: 01/03/2021)

On the other hand, there are also decisions from Labor Courts which have declared toxicological testing of employees to be unlawful. Here are some examples:

ABUSE OF MONITORING POWER – DRIVER – BREATHALYZER TEST – MORAL DAMAGES. The case records show that the employer’s monitoring power was exercised excessively and disproportionately, as there was no evidence that the breathalyzer test was part of a workplace safety policy, with prior employee awareness, and conducted in a manner that respected their privacy—without being performed in front of other colleagues or clients. Therefore, the requested moral damages compensation is granted. (TRT-20; Case File No. 00003814720135200009; Reporting Justice: Jorge Antonio Andrade Cardoso; Publication Date: 06/07/2016)

TOXICOLOGICAL AND BREATHALYZER TESTS IN PUBLIC – MORAL DAMAGES ESTABLISHED. The constitutional recognition of the right to intimacy, privacy, and image—core aspects of human personality—requires that employers respect these rights when exercising their authority. Failure to do so constitutes an unlawful act due to abuse of rights under Article 187 of the Civil Code, resulting in liability for the moral damages suffered by the employee. Thus, requiring toxicological and breathalyzer tests in public settings clearly causes embarrassment and violates the worker’s personality rights, especially when confidentiality is breached, no prior and express authorization was given, and there is no collective social interest or risk associated with the employee’s role (administrative sector). (TRT-1; Case File No. 0011531-85.2015.5.01.0008; Reporting Justice: Sayonara Grillo Coutinho; 7th Pannel; Publication Date: 15/06/2017)

These decisions demonstrate that indiscriminate testing without technical justification may constitute an abuse of managerial power and lead to moral damages compensation.

Technical justification is what distinguishes a legitimate policy from an arbitrary practice.

Such justification must be based on objective criteria aligned with occupational health and safety standards. Therefore, it is essential that the policy be jointly developed by the health and safety departments and legal counsel.

Without this care, a well-intentioned concern for collective safety may turn into labor liabilities.

Even when technical support exists, special attention must be paid to the consequences, such as disciplinary actions or dismissals based on alcohol or drug use.

Termination for cause, for instance, requires great caution. If there are signs that the employee is facing chemical dependency, the situation may be classified as a health condition rather than serious misconduct.

Thus, more than simply deciding to conduct testing, it is crucial to analyze the context, rationale, and legal implications of the policy to be adopted, including:

• how and when tests are conducted, considering the nature of operations and activities;
• consequences of refusing to undergo testing; and
• appropriate measures in case of positive results.

The legal strategy behind implementing an alcohol and drug policy is key to ensuring its validity in the face of individual or collective judicial challenges.