The use of toxicological examinations and breathalyzer tests in the workplace has become a recurring theme among companies concerned with safety, accident prevention, and compliance with occupational health standards. Recent debates, driven by legal opinions and expert analyses, reinforce that such measures, while legally permissible, require caution and proper structuring to avoid violating fundamental workers' rights or generating labor and compensation liabilities.
From a legal standpoint, both breathalyzer tests and toxicological examinations are supported by the employer's managerial power and the obligations stipulated in Article 157, paragraphs I and II, of the CLT (Consolidation of Labor Laws), which impose on the company the duty to safeguard the health, physical integrity, and safety of its employees. However, the exercise of this supervisory power must be guided by the principles of reasonableness, proportionality, and impartiality, as recognized by the consolidated jurisprudence of the Superior Labor Court (TST).
The legality of the tests depends directly on how they are conducted. The Superior Labor Court (TST) has already recognized, in several precedents, the validity of alcohol and drug control programs when carried out preventively, confidentially, and non-discriminatorily, especially in high-risk roles such as drivers, machine operators, and workers exposed to sensitive environments. When applied within these parameters, such tests do not constitute a violation of the worker's privacy or dignity, but rather the fulfillment of a safety duty.
On the other hand, poor handling of the procedure can completely reverse the legal scenario. Cases of public disclosure of results, threats, coercion, or unequal treatment among employees have led to companies being condemned for moral damages, based on articles 186 and 927 of the Civil Code and the constitutional principle of the dignity of the human person. The decision of the 2nd Panel of the TST (Ag-AIRR-20383-89.2017.5.04.0123) is an emblematic example: in that case, the company was condemned because the way the tests were applied subjected employees to ridicule and collective pressure, creating a hostile work environment.
Furthermore, the legislation and regulatory standards of the Ministry of Labor, especially NR-1 (Occupational Risk Management) and NR-7 (Occupational Health Medical Control Program – PCMSO), reinforce that the control of substances must be included in a properly documented occupational health program with a strictly preventive purpose. This means that the company must link the test to a workplace safety and health policy, and not to immediate disciplinary practices, under penalty of violating good faith and the principle of proportionality.
A balance is needed: The full possibility of administering breathalyzer tests without prior notice, provided the process is impersonal, random, and confidential. It is also necessary to reinforce that the objective should be accident prevention, not disciplinary control. It is recommended to develop a formal internal policy, widely disseminate it to employees, and train those responsible for administering the test, guaranteeing respect for the privacy and dignity of all involved.
Another crucial point is the handling of the results. Confidentiality must be absolute, with access restricted only to the health and safety sector. In the case of a positive result, the guidance is to conduct a confirmatory test and refer the employee to the occupational physician for clinical evaluation, especially when there are indications of alcohol dependence, recognized as a chronic disease by jurisprudence and the World Health Organization. In this way, the company demonstrates a humane and legally sound approach, avoiding hasty dismissals for just cause.
From a practical standpoint, it is recommended that the testing policy be based on technical and objective criteria, documented in the PCMSO (Occupational Health Medical Control Program), and compatible with the guidelines of NR-1 and NR-18 (Safety in the Construction Industry, when applicable). It is also prudent to maintain records of equipment calibration, random selection reports, and employee acknowledgment forms. These documents are fundamental in the event of a labor inspection or judicial expert assessment.
The adoption of periodic toxicological tests can, in fact, reinforce a culture of prevention and reduce accident rates. However, any monitoring practice must be proportional to the risk of the activity. Unrestricted and unjustified application can be understood as a violation of privacy. Therefore, planning should involve the legal department, HR, and occupational health service, ensuring alignment between operational safety and legal compliance.
In summary, breathalyzer and toxicology tests are valid and effective risk management tools, provided they are used for preventive purposes, with transparency, and with respect for the dignity of the worker. The challenge for companies lies in balancing the duty of safety with the protection of fundamental rights. The line between what is legal and what is abusive is thin, and depends essentially on how the procedure is structured and documented.
Our firm has a team specializing in labor law, occupational health and safety, and corporate compliance, capable of guiding companies in creating internal policies, developing regulations, and training managers. We act preventively and strategically to ensure that control practices, such as toxicological and breathalyzer tests, are applied with legal certainty and within legal parameters. Contact us to develop tailored labor compliance policies and avoid unnecessary risks.