OD FLASH | An employee under the influence of alcohol at the workplace cannot rely on the technical uncertainty of the breathalyzer test to challenge their dismissal

Supreme Court. 26 February 2025, No. 23-10.506

Article R. 4228-20 of the French Labor Code states in its first paragraph that no alcoholic beverages, except wine, beer, cider, and perry, are allowed on the workplace premises.

However, the second paragraph of this article allows the employer, under their obligation of safety outlined in Article L. 4121-1 of the French Labor Code, to limit or even prohibit such consumption through the internal regulations or, if not available, by a service note. These measures, designed to protect the health and safety of workers and prevent any accident risk, must be proportional to the intended goal.

In this case, an employee in a high-risk position on a construction site was dismissed for gross misconduct after an alcohol test revealed a blood alcohol concentration of 0.28 mg/l of exhaled air. The employee challenges their dismissal, citing the margin of error in breathalyzer tests.

The Aix-en-Provence Court of Appeal, in a ruling dated 25 November 2022, first noted that the test provided by the employer showed that the employee had come to work under the influence of alcohol, with a concentration of 0.28 mg of alcohol per liter of exhaled air. The Court also noted that the employee carried out their work under these conditions, even though they held a high-risk position on a construction site. Finally, the Court of Appeal reminded that the employer is subject to an obligation of safety, and any breach of this obligation can have serious consequences for the health and safety of workers, given the specific risks associated with the site where the employee worked.

The employee then filed for a cassation appeal.

The Supreme Court dismissed the employee’s appeal.

Based on the elements provided by the Court of Appeal and the employee’s working conditions, the Supreme Court held that the employee had breached their contractual obligations, making their continued employment impossible, despite the authorized margin of error (0.032 mg/l for concentrations below 0.400 mg/l according to Article 15 of the decree of 8 July 2003 on breathalyzer tests, and a margin of error of 20% beyond 0.2 mg/l as mentioned in the user manual of the device used).

This ruling underscore the strictness required for high-risk positions, where no tolerance is permitted. The margin of error for breathalyzer tests cannot be used to reduce the result of a test, and the employee cannot invoke this margin to contest their dismissal.