Employer responsibility and drug testing – legal obligations and rights

Under the Swedish Work Environment Act (Arbetsmiljölagen), employers in Sweden have an active responsibility to prevent ill health and accidents in the workplace. This responsibility includes managing substance misuse risks — which brings both rights (to test) and obligations (to rehabilitate).

The legal basis

Chapter 3, Section 2 of the Work Environment Act requires the employer to take all measures necessary to prevent the employee from being exposed to ill health or accidents. Within this framework, the employer has the right to set reasonable requirements for employees' suitability — including sobriety — when objectively justified.

A more detailed review is available in our guide Can employers drug test?

What falls under the employer's responsibility?

1. Preventing risks: have a communicated alcohol and drug policy, train managers and safety representatives, and ensure a safe working environment for everyone.
2. Identifying misuse: follow up on warning signs, document observations, and where necessary carry out suspicion-based testing.
3. Acting in a legally sound way: follow the chain of custody, engage an MRO for review, and document in line with the GDPR.
4. Rehabilitation: offer support and treatment in line with the rehabilitation responsibility under the Work Environment Act.
5. Equal treatment: ensure that the process is applied consistently to everyone without discrimination.

The rehabilitation responsibility

Under the Work Environment Act, the employer has a responsibility for rehabilitation in the event of confirmed misuse. This means you cannot go straight to dismissal after the first confirmed positive test — the Swedish Labour Court (Arbetsdomstolen) takes a serious view of this. A structured set-up:

• Suspension from safety-critical duties (on paid time)
• Confirmation analysis + MRO review
• Rehabilitation assessment with the occupational health service
• Structured return-to-work programme with follow-up tests
• Clear consequences in the event of relapse

The entire process is detailed in our guide on an action plan for a positive drug test.

Obligations in the employment contract

The employer should include:

• A reference to the alcohol and drug policy
• That the employee undertakes to comply with the policy
• Any requirements for a baseline test for new hires
• An obligation to disclose prescription medicines that may affect the ability to work

Equal treatment and discrimination

Drug testing must not be applied selectively on the basis of gender, age, ethnicity or other grounds of discrimination. Random programmes must use a documented selection draw, not the manager's gut feeling. The staff categories covered must be justified by a risk assessment, not stereotypes.

GDPR obligations

Drug test results are sensitive personal data (Article 9 of the GDPR). The employer must:

• Document the legal basis (usually legitimate interest + work environment responsibility)
• Limit the group of recipients to HR + relevant managers
• Define the retention period (often 6 months for negatives, longer for positives that lead to action)
• Carry out a DPIA for systematic programmes

A full review is available in our GDPR guide to drug testing.

In Labour Court cases

The Labour Court regularly hears drug testing cases. The most common reasons employers lose are:

• Inadequate policy documentation
• No MBL negotiation
• Insufficient rehabilitation assessment
• Broken chain of custody
• Discriminatory selection method
• Immediate dismissal without gradual measures

Industry-specific obligations

Certain industries have stricter requirements: transport (the Swedish Transport Agency (Transportstyrelsen), ADR), construction (client requirements, insurance), healthcare (patient safety, medicines management), HVB (requirements from the Health and Social Care Inspectorate (IVO)).

Summary

Employer responsibility for drug testing is about balance: the right to test when objectively justified, the obligation to do so in a legally sound way, and the obligation to offer rehabilitation in the event of confirmed misuse. Provsvaret helps you build the entire chain — contact us for a review.