It has become increasingly common for employers to require various tests in connection with employment. Retail chain Ica recently announced that it will drug test everyone applying for a job within the group.
In addition to drug or alcohol tests, it is also becoming more common for employers to conduct background checks. This could include, for example, extracts from criminal records, says Malin Wulkan, chief legal officer at the trade union Unionen.
But what does an employer actually have the right to demand? It depends a bit on where you work. There is a difference between the private and public sectors.
In the public sector, it is the form of government that places limits. There is a special regulation in the Public Employment Act that states when medical examinations can be carried out, and drug tests fall under that, says Petra Herzfeld Olsson, professor of labor law at Stockholm University.
Can say no
In the private sector, there is no direct prohibition against, for example, drug testing people prior to employment, and there is no equivalent legislation to that for the public sector.
However, private companies must comply with the General Data Protection Regulation (GDPR). This concerns how you as an employer may handle sensitive personal data, such as alcohol and drug test results. The processing of sensitive personal data requires support in the law.
The European Convention could constitute a limitation, but it is something that has not yet been tested, according to Herzfeld Olsson.
Of course, you can't force someone, but you can ask the question and choose not to hire someone depending on how the applicant feels about this issue, she says.
“Wrong and bad”
Safe and drug-free workplaces are a matter of course, says the trade union Unionen.
Is this the kind of work where it is actually reasonable and right to do tests? Then we think that they should be allowed to do it. The Labour Court has pointed out that it can be acceptable when it is dangerous work, for example driving heavy vehicles, forklifts and so on. Or when it is safety-critical, says Malin Wulkan.
The union, however, is critical of drug tests being standard in recruitment, for example.
It is wrong and bad.
The union believes that there are certain gaps in the law that need to be clarified.
We generally believe that integrity aspects must be given greater weight than they seem to have received so far in terms of controls in working life, says Malin Wulkan.
