Compulsory medical examinations and tests at issue in the Labour Court

The use of medical examinations and tests in working life has increased considerably in Sweden in the 1990s. Legislation regulating the subject exists only for the public sector, and the Ministry of Labour is at present considering whether it should propose a regulation which limits the introduction of such examinations by employers. At the same time a test case regarding the obligation for employees in the private sector to submit themselves to general compulsory drug tests is pending in the Labour Court.

A private company, OKG Aktiebolag, recently wanted to introduce routine compulsory drug tests for the employees at a nuclear power station, and initiated negotiations with the trade unions. OKG wanted to have a written instruction which would make such tests compulsory. The trade union which organises the blue-collar workers, the Swedish Electricians' Union (Elektrikerförbundet), refused to accept any compulsory drug tests for its members. The other trade unions, however, agreed to the company introducing compulsory drug tests and they were duly introduced. The tests were planned to take place every three years at the same time as a radiological examination.

The Electricians' Union brought the question to the Labour Court as a test case. The employee who is acting as plaintiff is a local trade unionist who has worked as a cleaner at the nuclear power station for more than 10 years. She is a non-smoker, physically active and a keen sportswoman. Although there were no suspicions raised against her, she had been called to go through a drug test. Her trade union claims that the Labour Court should declare that she is not obliged to follow the instruction.

The claim is disputed by the employer. The employer argues that according to the Work Environment Act the employer "shall take all precautions necessary to prevent the employee from being exposed to illness or accidents". The employer refers to the many security risks at the power station. The employer also emphasises that the woman's personal integrity is protected by all the procedures and secrecy rules in force.

The case involves a matter of principle. The union wants an answer to the question: "how far the employer can go in imposing drug tests on its employees?". The difference between this and former cases is that the employer has no suspicions whatsoever against the worker.

Statutory provisions

In Swedish law the use of medical examinations and drug tests in working life is regulated only minimally.

First, there is a distinction as to whether tests take place when a person is applying for a job, or if employment has already begun. Regarding the first situation the general rule is that the employer is free to employ whomsoever it wants and to request voluntary medical examinations of those applying for jobs, if it thinks that this is a suitable way to choose the right employee for the job(s) concerned.

Secondly, there is a difference between public and private employers. According to the Instrument of Government Chapter 1, Section 2, the power of public authorities must be exercised with respect for the liberty and dignity of the individual. The public administration is also obliged to protect the private lives of citizens. This article is a "provision of objective", which means that the public administration should strive to meet these objectives, but that they are not absolute.

Thus, according to a statute regulating employment in the public sector, a public authority may require a medical report from applicants, if the work demands a certain level of health. It is for the employer to decide whether tasks are of that character. In the private sector there is no legislation at all concerning medical examinations or tests among applicants for work. The right to require medical tests from applicants has however been limited through collective agreements in both the public and the private sector.

When a person is already employed in the public sector, the regulation concerning compulsory medical examinations starts from the Instruction of Government chapter 2 section 6, which states that all citizens shall be protected in their relations with the public administration against any physical violation. This provision has been limited by the Public Employment Act section 30, which states that if an employer has to perform tasks in which shortcomings in the condition of health of the employees concerned could pose risks to the lives of others, to their personal security or health, or is likely to result in considerable damage to the environment or property, the employee is obliged, at the request of the employer, to regularly go through the necessary health examinations. In order for this provision to be applicable to an individual employee, there must however also be a collective agreement or a statute obliging his or her category of employees to undergo such examinations.

Interpretation of the employment contract

Neither is there any legislation specifically relating to compulsory medical examinations or tests for those employed in the private sector. There, the individual employment contract determines if an employee is obliged to undergo such examinations. The employment contract is interpreted through collective agreements and law. One regulation which employers tend to invoke for this purpose is the Work Environment Act Chapter 3 Section 4, which prescribes that the employee shall participate in work relating to the work environment and take part in the implementation of the measures needed in order to achieve a sound work environment. But it does not follow from the employers' prerogative to lead and organise the work that they may arbitrarily prescribe medical examinations and drug tests. The protection of an individual's integrity must be weighed against the security aspect, the Labour Court stated in an earlier case. Thus, medical examinations and drug tests may take place at workplaces involving certain security risks, at least when the employer suspects an employee of using narcotics.

The question whether compulsory medical examinations of workers should be generally regulated in law was subject of an official report in 1996. The committee came to the conclusion that the regulation in force was adequate and that no complementary regulation was necessary. The report was subject to a lot of criticism and many organisations, among them trade unions, suggested that the private sector should be regulated in the same way as the public sector.

Commentary

In late November 1997, the Ministry of Labour is considering whether it should propose legislation limiting the use of medical examinations and drug tests in working life. In my opinion, there is a need for a relevant provision which the employer must consider, before it prescribes medical examinations or drug tests, be it for applicants or those already employed. (Petra Herzfeld-Olsson, NIWL)