To prevent occupational accidents and illnesses, the employer must take all measures that experience has shown to be necessary, that the state of the art allows to be applied and that are appropriate to a given situation.

The employer must draw up a proper safety concept, including a risk analysis, the application of appropriate safety measures and the allocation of tasks and responsibilities in this area. Employers must also properly inform and instruct their staff about the risks to which they are exposed in the course of their work, and instruct them in the measures to be taken to prevent them. Finally, the employer has a duty to monitor the scrupulous application of safety measures in order to prevent accidents. The employer must ensure that employees comply with workplace safety measures.

This naturally applies to the consumption of alcohol.

In particular, the employer must ensure that workers are not obliged to consume alcoholic beverages (art. al. 2bs LTr). The employer may also limit or prohibit the consumption of such beverages (art. 35 al. 3 OLT 3).

Employers must intervene if an employee becomes incapacitated by alcohol, thereby endangering themselves, their colleagues or third parties. If they fail to do so, they incur civil and criminal liability and may be liable to claims under the accident insurance scheme. If the employee appears incapable of performing his work without endangering himself, his colleagues or third parties, the employer must, by virtue of his obligation to protect employees and prevent any damage, refuse to employ an employee who is intoxicated.

The employee must cooperate in establishing and maintaining safety at work. After consuming alcohol, they must not put themselves in such a state as to expose themselves or others to danger (art. 6 al. 3 LTr; art. 11 al. 1 OPA).

The question of blood alcohol tests is controversial, insofar as they constitute a major violation of the worker’s personality. Moreover, it is not certain that the employee’s consent is sufficient in all cases to render such procedures lawful. The tasks expected of the worker and the specific risks they present are a major factor in assessment. A crane operator will not be treated in the same way as a sweet seller.

Preventive screening tests in the workplace may therefore not be carried out on a large scale, but only if there is a suspicion of drug or alcohol use and with the consent of the persons concerned. For occupational groups presenting major safety risks, preventive alcohol and drug tests may be requested on an exceptional basis. This measure must be expressly provided for in a clause of the employment contract.

Dismissal of an alcoholic poses particular problems. Dismissal on the sole grounds of alcoholism could be considered unfair. However, this would no longer be the case if the dismissal was based on inadequate performance or risks to others.

In view of the foregoing, employers are strongly advised to ban alcohol from the workplace, as permitted by Art. 35 para. 3 LTO3. A provision to this effect could usefully be included in the Staff Regulations or, for « at-risk » professions, in the work contract.

Finally, the issue of alcoholism in the workplace also arises during the various parties and celebrations that can punctuate working life, and the accidents that may result outside the workplace.

To the best of the author’s knowledge, the employer’s liability has not yet been called into question because of alcohol consumption in the workplace which would produce its effects afterwards (company dinner, followed by a car accident, for example). However, this cannot be ruled out, depending on the circumstances. The employer would therefore be well advised to take the safety measures required by the circumstances, such as banning alcohol from festive events (or at least liquor), organising transport for group outings or end-of-year events, organising voluntary alcool testing, providing a taxi or uber service to those not able to drive, etc.

Me Philippe Ehrenström, attorney, LLM, Geneva & Onnens (VD)