Sweden: The Swedish Labour Court Issues Important Ruling on Drug Testing in the Workplace

Author: Freddie Hassellöv

On 19 June 2024, the Swedish Labour Court issued a judgement in a dispute of principle importance for the system of drug testing on the Swedish labour market. The dispute concerned whether an employee of a company in the construction and installation industry was available to perform work during a period when the employee tested positive for cannabis and cocaine.

According to the Labour Court’s ruling, a general principle is that an employee in the private sector must perform, or at least be available to perform, work for the employer to be entitled to receive a salary according to his or her employment agreement. Conversely, an employee who is not available to perform work due to factors resulting from the employee’s own actions is not entitled to receive a salary for the relevant period. When it comes to drug testing in the labour market, the Labour Court’s previous rulings on drug testing entitle an employer to require random drug testing from its employees when:

• the work being performed by the employees is such that drug use may pose a risk to health and safety;
• when the employer’s business is particularly safety-sensitive; or
• when the employer must be able to show that its employees are drug-free due to the specific nature of the business.

The Labour Court concluded that the company, which had implemented a zero-tolerance policy to working while under suspected or confirmed influence of alcohol and narcotics, was conducting business where the potential influence of narcotics would pose a potential health and safety risk. The company was therefore entitled to require random drug testing in accordance with the company’s policy. Furthermore, the company’s policy stated that the company may remove an employee from the workplace when there is reason to suspect that the employee is under the influence of narcotics. Based on statements from experts heard during the main hearing, the Labour Court concluded that there are no drug tests available on the labour market which can definitively determine whether or not an individual is under the influence of narcotics at a given time. Therefore, the tests used, which showed trace elements of cannabis and cocaine, constituted sufficient evidence for the company to reasonably suspect that the employee may have been under the influence of narcotics.

The court found that, given the circumstances of the case, the employee was not available to perform work for the company. As this was due to the employee’s own actions, i.e. his own drug use, the company was not required to pay the employee his salary for as long as he tested positively for narcotics, in accordance with the company’s policy. The ruling will be of great importance for companies, employers’ organisations, and unions in the construction and installation industry as it clarifies what actions an employer may take when suspecting that an employee may be under the influence of narcotics.

Key Action Points for Human Resources and In-House Counsel

Employers should review their drug policies to ensure that they reflect and comply with the Labour Court’s rulings on drug use and drug testing in the workplace.