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Sweden: National Prosecutor Investigates Workplace Environment Crime After Nurse Dies of COVID-19

(May 4, 2020) On April 29, 2020, the Swedish National Prosecutor announced that it is investigating a workplace environment crime (arbetsmiljöbrott) after a nurse working at Karolinska University Hospital in Stockholm died of COVID-19. The investigation comes following a report by the local safety representative (skyddsombud), who reportedly claimed that the hospital lacked the appropriate safety equipment required by the Public Health Agency in Sweden (Folkhälsomyndigheten) to prevent COVID-19 transmission.

Under Swedish law, violations of the Swedish Environment Act that result in physical injury or death are criminalized. (3 ch. 10 § Criminal Code (Brottsbalken (1962:700)) [BrB].) Specifically, the Swedish Work Environment Act (Arbetsmiljölag (1977:1160)) requires that an employer

[t]ake all measures necessary to prevent the employee from being subjected to sickness or injury. A starting point should then be that everything that can lead to sickness or injury must be changed or replaced so that the risk for sickness or injury is eliminated.

The employer must consider the special risk of sickness and injury that may follow from the employee performing work alone.

Facilities, as well as machines, equipment and safety equipment and other technical devices must be well maintained. (3 ch. 2 § Work Environment Act.)

In addition the employer must continuously monitor and update employees about the risk as well as any safety measures, as necessary. (3 ch. 2a § Work Environment Act.) A person may be held criminally liable if he or she, with intent or through negligence, fails to fulfill his or her duties in accordance with the Environmental Act. (3 kap. 10 § BrB.)

The Swedish National Board of Health and Welfare has previously issued guidance on what safety equipment must be used in hospitals to prevent COVID-19 transmission from patients to health care staff. The guidelines recommend the use of safety glasses, visors, safety smocks, and mouth and respiratory protection in cases where there is a risk of transmission, as specified in section 17 of the Swedish Work Environment Regulation (AFS 2018:4). However, the Swedish National Board of Health and Welfare guidelines also advise against using personal safety gear, such as that listed above, when it is not needed. The Public Health Agency in its recommendation of March 2020 advises using either a FFP2 mask, a FFP3 mask, or PAPR mask, noting that FFP2 and FFP3 masks should not be used for more than four hours straight.

The investigation is being led by prosecutors from the National Unit for Environment and Working Environment Cases, who have yet to publish the date they expect the investigation to be completed.