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Legal status of drug testing in the workplace

Workplace drug testing (WDT) is a complex topic, not often regulated directly by supranational or national law. Much of the legal framework, where it exists at all, comes from interpretations of a combination of various national laws, including those on Labour Codes, privacy, data protection, and health and safety at work. A multinational company therefore may not be able to implement the same procedure in all its offices – and a parent company from outside the EU can experience another layer of difficulty. Ireland reported that the recent specific legislation on the issue was welcomed by all parties as it brought legal clarity to procedures which were already common in practice.

International level

On an international level, the matter might be covered by Universal Declaration of Human Rights, art 12 - "No one shall be subjected to arbitrary interference with his privacy". 

The 1996 ILO Code of Practice on Management of alcohol and drug-related issues in the workplace, s.7.2, states that testing should be undertaken in accordance with national laws and practice. The Guiding Principles of testing, in Annex V of the Code of Practice, states that the written policy should indicate any laws and regulations concerning drug testing that may apply. It should emphasis workers’ rights, employers’ rights, public rights and individual rights. This Topic Overview aims to list some of these laws and regulations.

In a paper drafted for the Pompidou Group on the issue, the ILO reported in 2003 that "workplace drug testing is an issue beset with technical, legal and ethical controversies."

European level

The European Convention on Human Rights, adopted in 1950 guarantees the right to privacy, except “in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder and crime, for the protection of health and morals, or for the protection of the rights and freedoms of others”  In its Art.8. Two cases appealing against WDT have been declared inadmissible by the Court based on the specific facts of these cases: Wretlund v Sweden (Application no. 46210/99) concerning a cleaner at a nuclear power plant, and Madsen v Denmark (Application no. 58341/00) concerning a ferry company employee. 

Within the European Union, the European Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work, applies to all sectors of activity, both public and private (Art.2). Art.6 states that the employer shall have a duty to ensure the safety and health of workers in every aspect related to the work, with Art.6(5) exonerating the workers from liability for financial cost. Art 11 states that "Employers shall consult workers and/or their representatives and allow them to take part in discussions on all questions relating to safety and health at work". Art 13(2)(d) states that employees must immediately inform the employer and/or the workers with specific responsibility for the safety and health of workers of any work situation they have reasonable grounds for considering represents a serious and immediate danger to safety and health.

The EU directive 95/46/EC on data protection, Art. 8(1) states the processing of personal data related to health is banned, though it gives a number of exceptions to this. The Working Party of the Article 29 has issued an opinion on the processing of personal data in the employment context which addresses the processing of health data in a employment relationship. WDT shall be carried out in compliance with data protection principles as laid down in Directive 95/46/EC. A consultation in November 2002 by DG Employment identified WDT as one of the upcoming areas in the field of protection of workers’ personal data. In light of this, the Commission indicated in its European Social Agenda adopted in February 2005 that it will launch an initiative concerning the protection of the personal data of workers.

Finally, the Charter of Fundamental Rights of the European Union of December 2000, addresses the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States when they are implementing Union law, contains Article 7 (right to private life) and 8 (right to the protection of personal data). Limitations on Art.7 are the same as those permitted for Art.8 of ECHR, limitations on Art.8 may be made “only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others” (Art.52(1)).

National level

The table below provides a simple overview of the legal situation in the countries.  Only Finland (2003), Ireland (2005) and Norway (2005) report legislation that clearly and specifically addresses the issue of drug testing in the workplace.  Nevertheless, for all countries, various patterns/differences are visible:

·The European Convention on Human Rights and the EU directives on data protection and health and safety at work appear to have been implemented in almost all countries’ laws. There is thus a high degree of harmonisation on some basic principles. National data protection authorities have made clear statements on WDT in some of the countries.

There is often a clearly qualified level of risk / response, though qualified in various different ways: many countries state that testing can take place when there is a health, safety or security risk, or when it is “necessary”, “proportionate”, “justified” or “reasonable”, or when there is suspicion of drug-taking.

The emphasis on the health aspects, rather than the possible illegality of drug taking: in many countries the occupational doctor can only inform the employer whether an employee is “fit for work”, rather than revealing the full results of the test. There are statements that testing should form part of an overall health policy and testing should be for influence (as opposed to detecting any traces of drugs). The employer has a legal duty to provide a safe place of work.

The employment aspects: countries vary considerably in their emphasis on testing before or during employment. Testing is permitted for job applicants in some countries in certain situations; changes in contracts to include a clause agreeing to testing should be negotiated with unions or workers’ associations; employees should give prior informed consent; and in some countries even a contractual clause on “agreement” is considered impossible to be voluntary consent.

Sanctions: some countries specifically penalise unjustified testing with criminal fines, either as a breach of workers’ privacy or as a breach of privacy generally. However, the EU directive on data protection leaves it to the Member States to define any sanctions for breach of data protection.

                                                                                         

Country

Is there dedicated legislation on WDT, for applicants or workers?

Workplace laws

Privacy laws

Data protection laws
Belgium

There is no specific legislation on workplace drug testing.

National collective agreement No. 38 on recruitment (1983) provides that interference in private life of applicants can be justified only when relevant to employment relationship (a rule generally accepted to apply to whole employment relationship).

Art. 3, 79 and 91 §3 of the Royal Decree of 28 May 2003 on health surveillance of the workers state that the test result is given to the occupational doctor, not the employer. The doctor is only allowed to inform the employer whether or not the person is fit for work, not the result of the drug test.

Under Art. 14 of the same law, pre-employment drug testing can be done for jobs where drug use presents a safety risk.

Constitution, Art.22

Law of 8 December 1992 covers the protection of privacy in relation to the processing of personal data - amended by law of 11 December 1998 to implement Directive 95/46/EC.

Czech Republic

There is no specific legislation on workplace drug testing. It is regulated generally in The Labour Law No. 65/1965.

It is forbidden to use drugs or to be under their influence at the workplace or in working time. It corresponds to the duty of an employer to ensure safety and health protection at work (The Labour Law No. 65/1965, s. 133, 135).

The employer (only the management staff) is allowed to make a breath or saliva test. Only health care institutions have the right to take biological specimens. Refusing of examination could be assessed as violation of working discipline and could lead to dismissal.

The employee is committing a misdemeanour or a criminal offence, if he/she is under the influence of psychoactive substances and performs a task, by which he/she could endanger others' health or means.

Constitution (Declaration of Basic Rights) Article 10.

Medical doctors are bound to secrecy (The Law No. 20/1966, On the Public Health Care). Information regarding the health status could be given only with the agreement of the subject of the data (Law on Personal Data Protection No. 101/2000).

Denmark

There is no specific legislation on workplace drug testing.

The Work Environment Law of 11 October 1999 (LBK 784/99), Chapter 11 allows the Minister of Labour to pass regulations regarding medical examinations of employees in specific sectors whose work is associated with health risks.

The White-Collar Workers Act of 20 July 1999 (LBK 622/99) applies to a large number of persons employed in the private sector. Sections 5 and 7 impose duties on white-collar workers to inform their employers of any illnesses or physical conditions that may prevent them from working.

There are 5 main principles of employment law, including the employer's right to manage and control work. This gives the employer the right to carry out control measures and regulatory provisions. The measures have to be necessary and proportionate otherwise they will be deemed unlawful.

The case of Madsen v Denmark (transport company employee) went to the ECHR, but was declared inadmissible.

The Act on Processing of Personal Data (Lov om behandling af personoplysninger, Act No. 429 of 31 May 2000) implements Directive 95/46/EC.

Germany

There is no single legislation on drug testing in the workplace, though various laws refer to it, and there is some case law from the Federal Labour Court. Drug testing is reported to be carried out much more during pre-employment than during employment.

The Federal Labour Court (Bundesarbeitsgericht) developed the “right to ask questions”. During the pre-employment medical exam, the employer can ask about drug consumption and conduct tests to discover information about drug addiction. The doctor is only allowed to inform the employer whether or not the person is fit for work.

The Occupational Safety and Health Act (ArbSchG), ss.3-7, oblige the employer to ban drugs at work if there is a considerable danger. The Accident Prevention Regulations by the Occupational Accident Insurance Funds oblige the employee not to be in a state that endangers himself or others, and the Works Constitution Act (BVG) s.87 permits a ban, and testing, for the influence of drugs during working hours. The Federal Labour Court accepts an obligation to test due to the employee's "general duty of loyalty", provided the employer has a legitimate reason to test (such as suspicion). Routine tests are not allowed except in dangerous or security-sensitive workplaces.

Constitution (Articles 1(1) and 2(1)).

The Federal Data Protection Act (Bundesdaten-schutzgesetz, BDSG) governs processing and use of personal data. Section 4(2) states that a subject must be informed about the data to be collected.

s.28.7 of the Data Protection Act permits collection of sensitive data under certain conditions.

The company doctor is subject to the rules of medical confidentiality even with regard to the transfer of medical data within the company (s.203 of the Penal Code (StGB); s.8(1) of the Occupational Safety Act (ASiG))

Estonia

There is no binding legislation on testing in the workplace. However, workplace laws allow action to be taken if an employee is intoxicated at work, and a decree might permit doctors to determine the degree of intoxication.

Under s.56 of the Employment Contracts Act, “an employer suspends an employee who is intoxicated by [drugs] from work for that day (shift). The employer is also required to suspend employees with signs of the residual effects of [drugs], and employees who are under the influence of medicines if the job demands particular accuracy, involves control over a major source of danger or working in its immediate vicinity.” For civil servants, a similar clause is included in s.109 of the Public Service Act.

The governmental decree no. 120 of 2 April 2001 on "procedure for ascertaining the existence and degree of intoxication, and appeal” is only binding for traffic safety issues, but might also be a guideline for workplace testing: it permits a doctor to determine the degree of intoxication.

Constitution, Article 26.

Personal Data Protection Act (first version 1996, current version entered into force 1 October 2003) regulates the use and processing of personal data, including data relating to the state of health.

Greece

There is no specific legislation on workplace drug testing, though the Data Protection Authority’s Code of Conduct refers to it.

Article 7 of the law 2683/1999 (Code for civil servants), regarding health, permits testing individuals at the pre-employment stage.

 

A law of 1997 permits testing of private individuals at the pre-employment stage, for Security Services.

Greek Constitution, Article 9
Law 2472/1997 implements Directive 95/46/EC. 

Data Protection Authority Directive 115/2001 interprets the norms laid down in laws 2472/97 and 2774/99 on data protection for the purpose of applying them in the area of employment relationships.

The Data Protection Authority’s Code of Conduct provides that alcohol and drugs testing in the workplace must be carried out with the prior informed consent of the employees concerned, be a clear element in their individual employment contracts and form part of an explicit health information, education and rehabilitation policy.

Spain

There is no specific legislation on workplace drug testing.

The Law 13/1995, of 8 Nov on Prevention of Labour Risks declares that “the employer will guarantee to his employees a periodic surveillance of their state of health in function of the inherent risks to the job” (Art 22.1(1)), bearing in mind that the surveillance of the workers´ health will be carried out, as a rule, with their previous consent and “respecting the worker's right to privacy and his dignity, and the confidentiality of all the information related to his state of health” (Art 22.2). 

Workers' Statute of 1995 approved by Royal Legislative Decree 1/95 of 24 March, Article 64, establishes right of works councils to issue a prior report on the introduction or revision of systems of organisation and control of work, and to monitor fulfilment of regulations and agreements in this area.

The Royal Legislative Decree 5/2000, of 4 August, says the employer's acts “contrary to the respect of the privacy and without due consideration to the dignity of the worker” shall be considered as a “serious infraction” (Art 8.11), and are sanctioned with fine from 300 to 90 000 Euro (Art 40.1)

Constitution, Art 8

The Workers’ Statute of 1995 refers to the right to privacy and dignity of workers.

Organic Law 15/1999 of 13 December 1999 on the Protection of Information of a Personal Nature implements Directive 95/46/EC.

France

Only workers in “traditional” safety-sensitive positions are subjected to testing in any form.

The Labour Code prohibits restriction of workers' rights and individual and collective freedoms unless this is justified by the nature of the task to be accomplished, or proportionate to the desired objective (employers must therefore justify potential restrictions) (Article L120-2, inserted by Law 92-1446 of 31 December 1992 (Aubry Law)); and provides that employees must be made aware of any monitoring that may focus on them (Articles L121-7 and 121-8 inserted by Aubry Law).

The Labour Code (art. R.241-48 to R.241-55) also gives general information on medical exams by the work doctor, in the recruitment proceedings and during the work contract, to evaluate the employee’s aptitude to work, but drug testing is not mentioned.  According to art. R242-23, the doctor is only allowed to inform the employer whether or not the person is fit for work, not the result of the test.

A Circular of the Ministry of Labour no.90/13 of 9 July 1990 effectively considered that systematic drug testing was never justified. Testing would only be possible in cases when the job involves tasks demanding in both safety and behaviour, both at the recruitment and regular health check stage.

The Ministry of Transport Act (arrêté) of 30th July 2003 provides for a biological examination conducted by an occupational doctor to detect psychoactive substances for security jobs in the national railway system.

The Civil Code (Article 9) provides a right to privacy.

The Criminal Code (Article 226-1) provides that wilfully impinging upon someone else’s privacy is a criminal offence

Law 78-17 of 6 January 1978 on information technology, files and freedoms (Loi relative à l'informatique, aux fichiers et aux libertés) governs collection and storage of personal computerised data.

The so-called Aubry law of 31 December 1992 applied general principles of 1978 data protection law to the field of employment. It has several articles concerning processing of data in recruitment.

Ireland

The Safety, Health and Welfare at Work Act 2005 requires employees to submit to drug tests if reasonable. These are expected to be implemented only in safety-critical sectors.

The Safety, Health and Welfare at Work Act 2005, s.13 requires employees not to be under the influence at work, and to submit to drug tests if reasonable; it is an offence, punishable by fine or prison, to fail to do this (s.77). Employer can ask doctor to check employee's medical fitness to work, s.23. Doctor should tell employer of decision, and employee of reason for decision. s.8 obliges the employer to provide a safe place of work. Regulations in 2006 will implement this Act and define details.

European Convention on Human Rights Act 2003

Data Protection Act 1988 and 2003; breach of the Data Protection laws is a criminal offence, with fines of up to €100 000 possible.

Italy

The only specific law on drug-testing at work applies to certain categories of workers to be identified in a decree jointly by the Ministry of Labour and Social Security, jointly with the Minister of Health. Until now no decree has been issued.

Art. 125 of the DPR 309/90 [the main drug law] states that certain categories of workers, holding “positions which involve a threat to security and the physical safety and health of third parties”, must undergo pre-employment and regular testing for drug addiction at the expense of their employer. In the case of a positive result of the drug testing, the employer must relieve the worker from the position which involve a threat to security and the physical safety and health of third parties. The employer may be fined up to €25 000 for non-compliance. 

Art. 124 (of the DPR n. 309/90) obliges employers of addicts with a permanent contract to keep these posts open for up to 3 years (without pay) while the addict is rehabilitated.

 

Law No. 675 of 31 December 1996 implements Directive 95/46/EC. Supplemented and partially amended by Presidential Decree No. 318/99 on 'minimum security measures for personal data handling' and legislative decree No. 467/2001.

Cyprus

There is no specific legislation on workplace drug testing.

There is a general duty of the employer to ensure health and safety at work under the Safety and Health at work Law, 89(I)/1996, but no specific reference to this issue, except a general prohibition of the use of controlled substances at the workplace. There is no provision on how this is checked.

Under this law, a company doctor may make certain tests in order only to ensure that the health of an employee is not affected by the use of or coming into contact with dangerous substances.

In some areas of employment, certain medical tests have to be done to ensure that a person is fit for work, but this does not include a drug test. There are certain jobs, eg pilots, professional drivers, which require a periodical health examination, but, again, this does not include a drug test.

Constitution, Art. 15.
Law 138(I)/2001 covers data handling.

The general principle is securing that the minimum data will be collected for the specific purpose needed.

No specific reference on this issue.
 
Latvia

The issue of drug testing at the workplace has limited regulations applicable.

Labour Law of 1 June 2000, Chapter 26 Section 101 states that the employer has the right to terminate an employment contract on the basis of listed circumstances, including that the employee when performing work is under the influence of drugs.

The Cabinet Regulation N 625 adopted 23.08.2005 "Procedure of alcohol, narcotic, psychotropic and toxic substances impact test" provides that if employer is suspicious that employee is under the influence of drugs he can be referred to drug testing.

Constitution, Article 96

Personal Data Protection Law of 24 October 2002 Article 7 states that personal data processing is permitted only if it results from a contractual obligation. Usually the employer includes condition that he will refer employee to drug testing in a labour contract.

Lithuania

Workplace laws allow action to be taken if an employee is intoxicated at work, and a decree might permit doctors to determine the degree of intoxication.

Labour Code (Section three “Performance of an employment contract”; Article 123 “Suspension from Work”) declares:

If employee is intoxicated with narcotic substances at work his employer forbids him to work that day (shift). If counterpart or institution who/which has a right to suspend requires, employer has to suspend such an employee from his work and refuse to pay him a salary.

Administrative Infringements Code of the Republic of Lithuania (Section ten “Administrative Infringements in transport, traffic economy and communication area”) states transport drivers shall be suspended if there is sufficient presumption that they are intoxicated with narcotic substances.

Order No 92 of the Government of the Republic of Lithuania (15 January, 1996) on Testing for intoxication of drivers and other persons defines the persons authorised to test (including certain employers of drivers), test procedures and consequences of testing drivers.

Duty penalty system defined by the Order No 1282 of the Government of the Republic of Lithuania (27 October, 2000) states: If a civil servant is suspected of being intoxicated during his service time, his lead manager forbids him to work that day (shift) and takes him to health care institutions for tests. If intoxication is proved, a duty penalty has to be imposed.

Constitution, Article 22

Law of the Republic of Lithuania on the legal protection of the personal data (implements Directive 95/46/EC)

Luxembourg

There is no specific legislation on workplace drug testing.

Law of 6 May 1974 Creating Joint Work Committees In Private Sector Enterprises And Organising The Employee Representation In Companies, Ch.I, Section 4 Art. 7: joint works committees in private sector enterprises (with over 150 employees) have co-determination rights on the introduction and application of techniques designed to monitor employees’ behaviour and performance at work.

If an employer suspects drug consumption, only the work doctor can perform required tests, according to the Grand-Ducal Decree of 19 March 1982 defining the modalities of medical examination and of blood and/or urine sample taking in case of presumption of illicit drug consumption. The code of medical deontology (Ministerial Decree of 7 July 2005, Article 86) stipulates that a work doctor only communicates his conclusions on an administrative level (e.g. capacity to perform a given task), without indicating underlying medical reasons to the administration he works for.

 

Law of 2 August 2002 governs protection of people in respect of processing of personal data, implementing Directive 95/46/EC.

Hungary

There is no specific legislation on workplace drug testing.

The Act on Labour Safety (No. 93/1993) does not authorize the labour safety controllers to make drug tests. The practice of the courts is only standard in the field of alcohol tests: involvement is obligatory for employee because of his labour relations.

Constitution, Arts.54(1), 59(1)

The Act on Personal data protection and publicity of data of general interest (No. 63 of 17 November 1992).

In June 2005 the Parliamentary Commissioner for Data Protection and Freedom of Information stated that, in his opinion, workplace drug testing and data management related to it are generally not acceptable, because workers are dependent on their employers, so supplying of personal special data cannot be regarded as voluntary.

Netherlands

There is no legislation which regulates workplace drug testing, so drug tests are not obligatory and the employees have the right to refuse.

Pre-employment drug testing of all applicants is prohibited by law; testing of the successful applicant is permitted in certain circumstances.

In March 1990, a cross-Ministerial government report stated that testing is possible only when the type of work justifies it.

A WDT programme must be based on an agreed procedure between the employer and the workers council.

The Working Conditions Act, Art.18, states that the employer should ensure the safety and health of his employees, and the employee is similarly obliged. It also permits the employer to offer employees periodic testing to prevent or limit health risks at work. This Act also obliges a risk evaluation concerning certain positions with a safety risk.   

The Works Councils Act (§27.1), gives works councils the right of consent (a kind of veto power) when the employer intends to introduce, change or abolish a rule on: the collection and processing of employees' personal data; or facilities aimed at, or suitable for, the observation or control of employees' presence, behaviour or performance.

The Civil Code (§7:611) gives the employers the power to make an infringement on the civil rights of employees in certain circumstances, if they behave in a reasonable way.  

The Medical Examinations Act s.4, only permits drug tests if there is a justifiable cause connected with the job itself, such as risks to the employee or third parties. A contractual clause giving the employer a right to test the employee is generally not considered to be sufficient, though this may differ in special circumstances (the Court permitted it in a case dealing with a rehabilitation centre for drug addicts). 

Constitution art. 10-11.
 

Personal Data Protection Act (Wet bescherming persoonsgegevens) of 6 July 2000 implements Directive 95/46/EC.   

A company doctor has the duty of confidentiality. This doctor is only allowed to inform the employer about the result of the examination in form of conclusions.

Austria

There is no specific legislation on workplace drug testing.

s.96 of the Labour Constitution Act (Arbeitsverfassungsgesetz, ArbVG) provides that the installation of any technological facilities at work which can monitor employees requires an obligatory works agreement (ie with the works council), if the employees’ 'dignity' is affected, even if the individual employee consents to such monitoring facilities. Under s.92a of the same Act, the works council also has information rights in this area.

According to s.15 (4) of the Employee Protection Act (ArbeitnehmerInnenschutzgesetz, ASchG) employees are obliged not to be in a state caused by the use of alcohol, medicines and drugs that endanger themselves or others.

Article 8 of the European Convention applies.

Data Protection Act has constitutional status and provides right of secrecy of personal data, particularly regarding respect for private and family life.

The 2000 Data Protection Act (Bundesgesetz über den Schutz personenbezogener Daten, Datenschutzgesetz) implements Directive 95/46/EC.

Portugal

There is no law that regulates drug testing, but the Data Protection Authority has made a pronouncement on it.

The Labour Code (PT0305101N) provides that employers and workers should respect each others' right to personality and to maintain confidentiality of their private lives, including access to and disclosure of health matters; files and computer applications used by employers to process personal data of job applicants or employees are subject to the law on personal data protection.

The employer shall promote medical exams with the intention to verify the physical and psychic condition of the employees for the exercise of their profession, as well as to verify the impact of the work and the working conditions on the worker’s health (Decree-Law 26/94, Art. 16.1).

 
Constitution, Article 35

Law 67/98 of 26 October 1998 on Personal Data Protection (Lei da protecçao de dados pessoais) implements Directive 95/46/EC, on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

 

The Data Protection Authority has considered that the systematic electronic registering of data on the results of alcohol and drug control should not be a rule for all employees. However it may be justified for some specific workers who might put other peoples’ health and safety at risk (Authorisation 59/97).

Slovenia

There is no specific legislation on workplace drug testing.

Under the Law on Safety and Health at the Workplace (1999), the employer is obliged to provide a safe place of work. Employer has the right and duty to require from a successful applicant to pass a preventive medical examination. Drug testing at the workplace is also possible on the basis of mutual agreement between employer and employee.

Drug testing is implemented on the basis of assessment of employee's capability to work (if he/she is fit to work). The occupational physicians are authorized to make such examinations. Some employers include drug testing in preventive and (in the case of suspicion) also periodic medical examinations. There are special regulations on drug testing for risk professions (e.g. transport, army, police etc.).

Constitution, Article 35

Constitution, Article 38; Law on Protection of Personal Data (2004).

Slovakia

The issue of workplace drug testing is regulated by the law on safety and health protection at work.

In the act No. 330/1996 Coll. on safety and health protection by work, the employer has a legal duty to test if the employee is under the influence of drugs during the working time. Under s.14 the employee has a duty to be subject to examination by the competent state authority or employer to find out if he is not under the influence of drugs. The criteria and other details of the testing procedure should be set out in internal regulations issued by each employer, following their approval by the trade union involved.

Part 2 of the Labour Code, Employment relationships, contains provisions about pre-contractual relations which says that, if the performance of work requires a certain health or mental capacity to work, or other precondition pursuant to special law, the employer may only conclude an employment contract with a person having such capacity, or with a person meeting other preconditions pursuant to a special law.

Under s.195 of the Labour Code, the employer is accountable for the damages arising from a case if an employee sustains damage to health or suffers death by the way of accident.

Constitution Act No. 460/1992 Coll., Article 16 para 1
Law no. 428/2002 Coll. on Protection of Personal Data

Under the Act no. 95/2000 Coll. on Work Inspection the personal data are processed for inspection purposes even without the consent of a particular individual.

Finland

The 2004 Act on Workplace Drug Testing defines the details for workplace testing.

The Act on Workplace Drug Testing (759/2004) ss.7-8 permits workplace drug testing, paid for by the employer, for successful job applicants, or current employees. This is in certain defined circumstances, where intoxication or addiction may endanger life, health, national or traffic safety, security of information in the public interest, or business or professional confidentiality.

The State Council Decree on Good Practice in Workplace Drug Testing outlines the details of the testing procedures.

The Occupational Health Care Act requires that the need for a test is assessed by a health care professional, not by the employer. Only a general conclusion on the health of an employee (fit, fit with restrictions, or not fit) can be given to the employer. The employer is also obliged to prepare a written comprehensive prevention programme on alcohol and drugs policy in the enterprise in cooperation with the workers.

Tests must follow the Act on Patients Rights (785/1992); s.5 requires the "informed consent" of the patient, thus an employee has the right to refuse testing.

Constitution: s.7 and s.10
 
 
Sweden

There is no specific legislation on workplace drug testing.

The 1994 Public Employment Act, s. 30 permits the employer to conduct regular health tests, following a special request, if health problems of the employee at work could entail a risk of human life, personal security or health, or of substantial damage to the environment or property.

 

Chapter 3 s. 4 of the 1977 Swedish Work Environment Act instructs the employee to be active towards a safe work environment, including taking precautions for the prevention of illness and accidents.

 

Employers and employees may stipulate conditions for WDT in the collective bargaining agreement.

 

The 1994 Employment Ordinance, Art.5 permits a public employer to demand a doctor’s certificate from a job applicant if the tasks in question can strain the health of the employee.

 

Case law from the Swedish Labour Court stipulates that certain conditions, such as security reasons, could justify an employer to oblige an employee to undergo a drug test.

Chapter 2 article 6 of the Instrument of Government.

The 1998 Personal Data Act (Personregisterlagen, PUL) implements Directive 95/46/EC.

Norway

Testing is regulated by the 2005 Act relating to Working Environment, Working Hours and Employment Protection. Subjection to medical examinations (eg drug testing) is a serious interference with the personal integrity of the employee/ job applicant and should only be executed when strictly necessary

The Act No. 62 of 17 June 2005 relating to Working Environment, Working Hours and Employment Protection s.9-4 states that the employer can only demand medical examinations (eg drug testing):

when pursuant to law or regulation

- for positions which are associated with special risk

- when the employer finds it necessary to protect the life or health of employees or a third party.

These provisions apply both in relation to employees and to job applicants. Section 9-4 is exhaustive in the sense that the consent of the employee or job applicant does not provide a sufficient legal basis for drug testing. The testing must also comply with the general provisions in section 9-1, which state that all controlling measures must be objectively justified and not a disproportionate burden on the employee.

Furthermore section 9-2 establishes an obligation for the employer to discuss controlling measures with the elected representatives of the employees as early as possible and to provide information to the employees themselves about certain aspects of the controlling measures.

The Act no. 30 of 21 May 1999 relating to the Strengthening of the Status of Human Rights in Norwegian Law has made the European Convention on Human Rights art. 8 part of Norwegian law.

Courts have established a fundamental legal principle of 'protection of personal integrity.'

The 2000 Act relating to the Processing of Personal Data (Personopplysningsloven) implements Directive 95/46/EC.

 

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Page last updated: Tuesday, 31 October 2006