Can employers drug test? Here is what the law says

"Can employers drug test?" is one of the most common questions we get from HR managers and those responsible for the work environment. The short answer is yes – but only under certain conditions. This article goes through what actually applies under Swedish employment law and the case law of the Swedish Labour Court (Arbetsdomstolen).

The legal basis

There is no specific law regulating drug testing in the workplace in Sweden. The right to test instead follows from a balance between the employer's right to direct work and responsibility for the work environment (the Swedish Work Environment Act (Arbetsmiljölagen), Chapter 3, Section 2) and the employee's right to personal privacy (Article 8 of the European Convention on Human Rights and Chapter 2, Section 6 of the Swedish Instrument of Government (Regeringsformen)).

In several leading judgments (e.g. AD 1991 no. 45 and AD 1998 no. 97), the Labour Court has established that drug testing is permitted if there are objective grounds linked to the work environment or safety, a communicated alcohol and drug policy, and a proportionate implementation process.

Objective grounds – when is a drug test justified?

Objective grounds require a concrete link between the work and the risk of negative consequences of drug impairment. This may involve:

• Safety-critical work (transport, construction, process industry, healthcare)
• Operation of heavy machinery or vehicles
• Work with vulnerable individuals (healthcare, social care, HVB residential care homes)
• Roles where drug impairment poses a financial or reputational risk
• Industries with explicit client requirements for being drug-free

Collective agreements and negotiation

As a rule, drug testing is a matter covered by Section 11 of the Co-Determination Act (MBL) and must therefore be subject to primary negotiation with the relevant trade union before the policy is adopted. Some collective agreements contain specific provisions on drug testing – check your industry.

Can an employee refuse a drug test?

In practice, an employee can refuse a drug test. The consequences depend on whether the refusal occurs against the background of a communicated and objectively justified policy. If so, the refusal may become a question of the duty to work and may ultimately lead to dismissal, provided proportionality is maintained. Without a clear policy, refusal is rarely grounds for action.

Three levels of testing

Provsvaret recommends distinguishing between three levels in the policy:

1. New hires – baseline screening before starting work
2. Random checks – with a defined frequency and anonymised selection
3. Suspicion-based testing – where there are concrete indications or after an accident

GDPR and confidentiality

Drug test results are sensitive personal data under Article 9 of the GDPR. Read more about GDPR and drug testing in the workplace for a review of the legal basis, storage and the rights of data subjects.

Brief summary

Yes, employers may drug test in Sweden – but only with objective grounds, a communicated policy, negotiation under the Co-Determination Act (MBL) and a legally sound chain of custody. Provsvaret helps you build the entire chain, from policy to sample collection to MRO review. Contact us if you would like a review of your existing process.