The employer, in its subordinate capacity, has the authority to initiate disciplinary processes against any worker who fails to comply with the obligations or incurs the prohibitions set forth in the regulations. However, it is important to identify when such employee has an addictive tendency and the disciplinary process is initiated for a different cause, and when the process is initiated due to the consumption of addictive substances during the workday or reporting to work under their influence.
The disciplinary process initiated against such employee may have two purposes: (i) when seeking the imposition of sanctions understood as warnings or suspensions, and (ii) when the purpose is to terminate the employment contract.
In the event that the purpose of the disciplinary process is the termination of the employment contract, and numeral 6 of Article 62 of the Substantive Labor Code is invoked as just cause to end the contractual relationship with the worker, due to an objective breakdown of labor relations with the employee, it becomes necessary to preliminarily address the health conditions surrounding the employee; in the terms set forth in Ruling C-636 of 2016 by the Constitutional Court, which requires analyzing whether the consumption of alcoholic beverages or narcotic substances causes in the worker: (i) a negative impact on their job performance; or (ii) places them in a risk situation both for themselves and in relation to other workers.
If, upon detailed examination, the worker's condition regarding the consumption of the aforementioned substances does not fall within the two items addressed by the Constitutional Court, that is, there is no impairment or occupational risk for the worker or their coworkers, the company must guarantee the right to privacy and free development of personality, maintaining confidentiality of information, especially regarding the consumption of addictive, narcotic, or intoxicating substances, particularly if it is due to a medical disorder.
Now, having overcome the detailed application of Ruling C-636 of 2016, we have Ruling SL771-2024 by the Supreme Court of Justice, whose Labor Cassation Chamber highlights the importance of providing support to the worker, activating the companies' Occupational Health and Safety System (SST), as well as medical counseling with the respective Health Promoting Entity (EPS) of the worker, emphasizing:
"the conditions under which work is performed have an impact on the daily life of the person, and that is why, from different areas, the introduction of protocols is foreseen to prevent the consumption of drugs and psychoactive substances, and thus ensure that matters related to alcohol and drugs in the workplace are given treatment that excludes any type of discrimination solely because of consumption and rule out as a first resort the exercise of disciplinary power."
For all the foregoing, companies are urged that, prior to the application of numeral 6 of Article 62 of the CST, which contemplates the prohibition of numeral 2 of Article 60 ibidem, they must first provide medical support to the worker, "ruling out exercising ius puniendi as a first resort, and instead establishing basic guidelines when such addiction has crossed individual boundaries and is decisively affecting the contracted activity or the environment in which it is carried out".
Given the above, the following will be necessary for the termination of the employment contract with personnel prone to addictions:
- Implement and follow zero-tolerance policies against the consumption of psychoactive substances or intoxicating beverages.
- Analyze the existence of reluctant and repeated conduct on the part of the worker.
- Activate the company's SST to provide the necessary medical support.
- Determine, through the Risk Manager, whether the worker's health condition poses a risk in the performance of assigned duties, taking into account the job position, machinery, use of weapons, or mobilization in a motorcycle or automobile.
Likewise, it must be determined through objective and demonstrable arguments that the worker under the influence of substances, in light of the Internal Work Regulations and respective policies, leads to the conclusion that they are not fit to perform their duties, putting at risk their life, that of coworkers, and the company's operations.
When an employee shows addictive tendencies, companies must handle disciplinary processes with care. If an employee violates rules, whether by acting under the influence of substances during work or for other reasons, the employer may sanction them with warnings or even suspension. However, if dismissal for just cause due to addiction is considered, it must first be assessed how this affects their performance and safety at work. The Constitutional Court and the Supreme Court have emphasized the importance of providing medical support to the employee and avoiding discrimination, prioritizing health and rehabilitation before opting for dismissal.