Legal framework for medical checks and drug testing in Switzerland

In Switzerland, employers must navigate a complex legal landscape when conducting medical checks and drug testing, ensuring they respect employees’ rights while maintaining workplace safety. The legal framework is primarily governed by the Swiss Code of Obligations (CO), the Labour Law (LTr), various ordinances, and the Federal Data Protection Act (FADP).

• Article 328 CO: Employers must protect the health of employees and ensure safe working conditions. This can include necessary medical checks and drug tests to ensure workplace safety.
• Article 328b CO: Employers must handle employees’ personal data, including health information, with care. Data collection is allowed only if necessary for the execution of the employment contract or required by law.

• Article 6 LTr: Employers are obligated to take necessary measures to protect the physical and mental health of workers. This includes the possibility of requiring medical examinations and drug tests in certain circumstances.
• Ordinance 3 to the Labour Law (OLT 3): Specifies health protection measures at work, including medical surveillance requirements for certain professions or activities with particular risks.

• Necessity and Proportionality: Any medical checks or drug tests must be necessary for the specific job and proportional to the purpose. For example, safety-sensitive roles may justify these measures to prevent workplace hazards.
• Consent: Employees must generally provide their consent for medical checks and drug tests. Without consent, such tests may only be conducted in exceptional cases where safety or legal compliance is at risk.
• Privacy and Confidentiality: The process must respect the employee’s privacy and dignity, with results treated confidentially and used solely for the intended purpose.

• Pre-employment Testing: Employers may require medical checks and drug tests as a condition of employment, especially for roles involving significant safety responsibilities.
• Random Testing: In safety-sensitive industries, employers might conduct random tests to ensure ongoing compliance and safety.
• For-Cause Testing: If there is reasonable suspicion of impairment due to medical conditions or drug use, employers may require tests to ensure workplace safety.
• Post-Accident Testing: Following a workplace accident, medical and drug tests may be conducted to determine if health issues or substance use were contributing factors.

Certain sectors have stricter regulations regarding medical checks and drug testing:

• Aviation: Strict requirements for drug and alcohol testing apply to aviation employees, including pilots and air traffic controllers.
• Transportation: Similar stringent testing applies to transportation employees such as train operators and bus drivers.
• Healthcare: Healthcare workers in sensitive positions may undergo regular medical checks and drug testing to ensure patient safety.

• Federal Data Protection Act (FADP): Health data, including results from medical checks and drug tests, are classified as sensitive personal data. Employers must handle this information with strict confidentiality, ensuring it is only accessible to authorized personnel.
• Disclosure: Employers must inform employees about the reasons for medical checks and drug testing, how the data will be used, and who will have access to the results.

• Right to Information: Employees have the right to be informed about the medical checks and drug testing processes and the handling of test results.
• Right to Challenge: Employees can challenge the results or the necessity of tests if they believe their rights have been violated.
• Rehabilitation: Employers are encouraged to offer support and rehabilitation instead of punitive measures for employees who test positive for drugs.

Summary

In Switzerland, medical checks and drug testing by employers must be justified by safety and health reasons, respect employees’ privacy, and comply with the applicable laws regarding data protection and workers’ rights. The necessity and proportionality of such measures, along with the requirement for employee consent and strict confidentiality, form the core principles of this legal framework.

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