In a 2013 ruling, Frostating Court of Appeal set limits on how far control measures can go.

A fishing boat company that practiced zero tolerance for any intoxicants on board and also for the use of illegal intoxicants during free time also introduced hair samples in addition to urine samples. A crew member who refused to provide hair samples was considered to have tested positive. His dismissal was found to be valid.

Suspicion fell on A, who had been sitting in the place where the needle was found. Subsequent analysis of the needle showed that it contained narcotic substances. However, A refused to provide a hair sample.

Hair samples can provide answers as to whether the person who provided the sample has taken narcotic substances. Hair grows approximately 1 cm per month, which makes it possible to determine when the substance was taken. The ruling (Rg-2013-620) states:

"The "Guidelines for Drug and Alcohol Testing," Appendix 2 to the collective agreement between the Norwegian Fishing Vessel Owners' Association/Norwegian Trawler Owners' Association and the Norwegian Seamen's Union, stipulates that advance notice must be given before control measures are introduced, that the control must take the form of a urine test, and that consent must be obtained from each individual crew member prior to each test.

The statements signed by the crew members, including A, on February 19/20, 2012 refer to the aforementioned appendix. Furthermore, the statement confirms that they had "received, read, and understood the shipping company's instructions and guidelines for service with regard to alcohol and drugs." The Court of Appeal does not consider it decisive that, in this case, no discussion was held prior to the introduction of the new control regime and that the control was not limited to urine tests but also included hair tests. The zero-tolerance policy was incorporated and accepted, information was provided verbally before departure, and the new guidelines were posted in the crew mess. The notice clearly stated that "testing" meant "collection of urine and hair samples" and that if "the person being tested has refused to provide either a breath sample or a urine/hair sample," this would be considered equivalent to a positive test. It is not credible that A had not familiarized himself with this information, as he himself claims.

The Court of Appeal finds that rust testing must be carried out in accordance with a general standard of objectivity and in accordance with a principle of proportionality, whereby the need for control is weighed against privacy considerations.

It is generally accepted that drug abuse is grounds for dismissal regardless of whether it has affected service on board and regardless of whether the abuse is repeated or not. In this case, refusal to take the test is the reason for dismissal. As mentioned, the shipping company's guidelines clearly state that refusal is to be considered a positive test result. It is difficult for the Court of Appeal to see any other adequate sanctions in such situations.

The case concerned the use of narcotic substances at sea; one factor here is that the consequences of consuming narcotic substances can be greater at sea than in other land-based positions. On the other hand, it must be up to the parties (employer and employee) to decide that drugs will not be tolerated in the workplace, and clear agreements stating that there is zero tolerance in the workplace are unlikely to be set aside by the courts. However, hair samples may be less significant as evidence in positions where the employee leaves work during their free time. Although it is prohibited to consume narcotic substances, it is doubtful whether an employee can be dismissed for violations committed in their free time outside the workplace. For companies that have a liquor license and have reason to suspect that employees are using drugs during working hours, the ruling is of interest.
The rules on control measures are included in Chapter 9 of the Working Environment Act.

Question:
After the company's security company had discovered through a random check that Peder had taken goods belonging to the company, Peder claimed that the evidence could not be used because the company did not have a representative who had been informed that control measures were being implemented. Peder claimed that because he had been informed directly by the general manager, the duty to consult had not been complied with.

Answer:
In companies that do not have a collective agreement, it is common that there are no employee representatives either. For the company, this means that direct communication with individual employees is necessary. However, if this has been done in a satisfactory manner, there is no basis for claiming that control measures cannot be used because there have been no consultation meetings with employee representatives. Peder's claim is therefore rejected.