This blog post is part of our Frequently Asked Legal Questions series. My colleagues Laney, Kelly, Hanibal, and Tariq have all written about the responses to the COVID-19 pandemic in countries from their respective portfolios: China, New Zealand, South Africa, Liberia, and Pakistan. Several of my colleagues also contributed to a foreign law report on restrictions on freedom of expression during COVID-19.
In September, Kelly and I hosted a webinar titled “Worlds Apart: Legal Responses to the COVID-19 Pandemic in New Zealand and Sweden.” This blog post deals with some of the issues that were addressed during that webinar, as well as some legal and policy developments in Sweden that have unfolded more recently.
Sweden was in the news for its coronavirus response this spring and summer, in particular its decision not to shut down businesses and schools in the country, and has at times been described as pursuing “herd immunity.” When neighboring countries Denmark, Finland, Iceland, and Norway closed their countries to all foreign visitors, including European Union (EU) citizens, in March and April, Sweden became known as the country where rich Europeans came to have their hair cut.
Perceptions of Sweden’s response have been mixed. On May 20, 2020, Sweden was reported as being the country with the highest number of deaths per million in the world. It currently has the fourth most deaths from COVID-19 per million inhabitants in the EU, behind Belgium, Spain, and Italy. Despite not shutting down the economic impact of the pandemic has still been considerable, with Sweden reporting the largest GDP loss (-8.6%) of all the Nordic countries in the second quarter of 2020, and it has seen one of the highest increases in unemployment within the EU so far.
As of, October 21, 2020, Swedish official death toll (5,929) is about ten times (per capita) that suffered in Norway (279 total dead), and approximately 4.5 times that of Denmark (690), Finland (351), Iceland (11), and Norway combined. As of October 20, 2020, the death rate in Region Stockholm in relation to confirmed cases was about 8.2% (2,419 dead out of 29,497 confirmed cases).
Below are answers to some of the questions that have arisen about Sweden’s legal response to the COVID-19 pandemic.
1. What laws govern the pandemic response?
Sweden’s main contagious disease management legislation can be found in the Contagious Disease Act (Smittskyddslagen (SFS 2004:168)). The law provides that diseases defined as contagious in 1 ch. 3 § and listed in Annex 1 and 2 may warrant limitations on personal freedoms, including isolation (5 ch. 1 §), and limits to public gatherings as specified in the Public Order Act (2 ch. 15 § Ordningslagen (SFS 1993:1617)). In addition, the Act on Protection Against International Threats to People’s Health (Lag om skydd mot internationella hot mot människors hälsa (SFS 2006:1570)) provides for government measures such as re-routing of vessels (ships and aircraft) which may carry threats to people’s health to specific quarantine ports. You can read more about health emergency regulation in Sweden in a Law Library report from 2015.
In addition to legislation, the Public Health Agency (Folkhälsomyndigheten) can issue regulations and recommendations. For example, in accordance with the Contagious Disease Act, the government or a designated agency may issue additional rules that “are necessary for a purposeful protection against the spread of contagious diseases and to protect individuals.” (9 ch. 4 §.) The FHM has been designated and empowered to issue such additional regulations. (5 and 12 §§ Smittskyddsförordning (SFS 2004:255).) The Contagious Disease Act provides that persons who expect that they are carrying a contagious disease should readily test for said disease and the result must be reported to the responsible infectious disease control physician. (3 ch. 1-2 §§.)
In October 2020, the FHM issued a regulation that provided that untested suspected cases of COVID-19 should not be reported to the regional infectious disease control physician (smittskyddsläkare). (HSLF-FS 2015:7 as amended by HSLF-FS 2020:45.)
2. What are the constitutional restrictions on pandemic responses?
The Swedish Constitution (Regeringsformen (RF)) protects fundamental freedoms, as does the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights (ECHR)), to which Sweden is a State Party. The Swedish Constitution protects freedom of movement, and specifically provides that citizens are guaranteed a right to movement within the kingdom and a right to leave it. (2 ch. 6 and 8 §§ RF.) This freedom of movement may only be limited by law. (2 ch. 20 § RF.) Moreover, limits on the freedom of movement are only permissive in order to “accomplish goals that are deemed acceptable in a democratic society and may never extend further than what is necessary in relation to the purpose for which the measure was taken.” (2 ch. 21 § RF.) Thus, limits to the right of free movement, as well as to the protection against forced physical interventions (such as a COVID test), can only be prescribed in law. (2ch. 6 and 8 §§ RF.)
3. Who are the actors combatting the COVID-19 pandemic?
Under Swedish law, the national government (Regeringen) sets the rules on limits on personal freedoms in response to a pandemic, following the advice of the FHM.
Health care is provided regionally. Each region has a responsible infectious disease control physician that organizes the measures related to contagious diseases within the region, and is responsible for ensuring that the public has adequate information on prevention. In addition, the responsible infectious disease control physician ensures that preventive measures are taken by health care providers, follow up reported cases, and ensures the contact tracing of patients and persons possibly affected by the disease. (ch. 6 Smittskyddslagen).
In addition, during the COVID-19 pandemic, the National Board of Health and Welfare (Socialstyrelsen) has been commissioned by the government to assists with: coordinating the purchase of personal protection equipment (PPE) and other medical supplies; representing Sweden in the EU’s joint procurement of PPE; redistributing medical supplies between regions and municipalities; and coordinating nationally the use of ICU beds. The Swedish Civil Contingencies Agency (Myndigheten for Samhällsskydd och beredskap (MSB)) is responsible for gathering information and providing such information to the public, making risk assessments, analyzing preparedness, preparing regulations, and drafting guidelines.
4. What legal restrictions are currently in force?
Limits on public gatherings
On March 11, 2020, Sweden limited public gatherings, making gatherings of 500 people or more illegal. This measure resulted in some artists deliberately setting their maximum attendance at 499. On March 27, 2020, Sweden further limited public events and gatherings to no more than 50. On August 24, 2020, the FHM recommended that as many as 500 may gather in public assemblies provided that a distance of at least one meter (about three feet) between persons or parties can be observed. However, the government chose not to relax the restrictions and currently the limit on public gatherings remains at 50.
Social distancing required at restaurants
The 50-person limit does not apply to restaurants and bars. However, restaurants and bars are required to follow specific guidelines on measures to limit the spread of COVID, and the municipality together with the local infectious disease control physician can close establishments that do not undertake sufficient measures. (Lag om tillfälliga smittskyddsåtgärder på serveringsställen (SFS 2020:526).) Municipal authorities oversee compliance and may issue injunctions, and fines, to ensure compliance. (4 and 7 §§.) Among other things, the guidelines require that parties be seated at least three feet apart, but buffet style dining is still allowed provided the area around the buffet is not crowded. The government has proposed extending the temporary restrictions until July 1, 2021. Currently, the law expires on December 31, 2020.
International travel restrictions
On March 17, 2020, the government, on the recommendation from the European Council and the European Commission, temporary restricted non-essential travel to Sweden from countries outside of the EU, the European Economic Area (Norway, Iceland, and Lichtenstein), Switzerland, and the United Kingdom. (Förordning om tillfälligt inreseförbud till Sverige (SFS 2020: 127).) The ban entered into force on March 19, 2020, and has been extended several times. It is currently in force until October 31, 2020. (Förordning om fortsatt giltighet av förordningen (2020:127) om tillfälligt inreseförbud till Sverige (SFS 2020:759).) The travel restrictions have a number of exemptions, and for example do not affect Swedish citizens or residents of Sweden. Beginning July 4, 2020, entry by persons residing in the following countries is also not restricted: Australia, Georgia, Japan, Canada, New Zealand, Rwanda, the Republic of Korea, Thailand, Tunisia, or Uruguay. On October 20, 2020, the Swedish government proposed also adding an exemption for professional athletes, who wish to come to Sweden to compete. The Swedish Ministry of Foreign Affairs (Utrikesdepartementet (UD)) also currently advises against travel to a number of countries. However, currently travel is not considered by the FHM to be the engine of the pandemic.
5. What non-binding recommendations are currently in force?
The FHM can issue both allmänna råd and rekommendationer, both are legally non-binding but allmänna råd (general advice) are meant to guide behavior, and persons who act in a way that does not comply with allmänna råd may need to show that they are acting in accordance with law more broadly to show that they are not careless. Rekommendationer (recommendations) on the other hand are just that: general recommendations without legal force.
The FHM has updated its regulations and general advice on combatting COVID-19 (Folkhälsomyndighetens föreskrifter och allmänna råd om allas ansvar att förhindra smitta av covid-19 m.m. (HSLF-FS 2020:12)) a couple of times during the COVID-19 pandemic and it includes general advice as well as advice specifically addressed to older Swedes.
On March 16, 2020, the FHM recommended that persons aged 70 and above stay home, limit their social contacts, and refrain from visiting grandchildren. However, former state epidemiologist, Johan Giesecke, 71, who is still providing services to the FHM as a consultant, stated on May 18, 2020, that he was still seeing his grandchildren regularly.
The FHM has issued general non-binding guidance, including recommendations on hand hygiene, maintaining social distance at e.g. museums, stores, gyms, and aquatic facilities, refraining from using public transportation if seats cannot be pre-assigned, and refraining from taking part in larger social events, such as parties, funerals, baptisms, and weddings. (HSLF-FS 2020:31.) The FHM has also issued non-binding guidance for choirs.
The FHM has not issued any binding or non-binding recommendations with regards to wearing facial coverings, and the use of masks is reportedly close to non-existent among the general public.
6. Can Sweden legally require quarantine and isolation or even lock down an area similar to what Finland did with Helsinki?
The Contagious Disease Act provides that a person who has been infected or may have been affected can be placed in quarantine within a building or area. (3 kap. 9 § Smittskyddslagen.) Swedish government representatives have reportedly claimed that Sweden does not have the power to quarantine people on a larger scale, or in larger areas.
7. Did Parliament pass any new legislation to combat COVID-19?
One of the first measures taken by the Swedish Parliament in response to the COVID-19 pandemic was on March 11, 2020, when it passed temporary legislation that removed the first day qualifying exemption for sick leave, replacing it with a standard compensation of SEK 804 (about US$91) to encourage symptomatic individuals to stay home, which has been extended until December 31, 2020. On April 16, 2020, the Swedish Parliament passed an emergency law that gave the Swedish government some temporary emergency powers during the COVID-19 outbreak. On June 17, 2020, Parliament passed a law that gave municipalities increased powers to close bars and restaurants that don’t comply with legally binding COVID-19 safety measures.
8. Are there regional rules regarding COVID-19?
Most of the adopted responses to the virus have been national. For instance, starting April 1, the government, on the recommendation of the FHM, put in place a national prohibition on visits to elderly care homes, at a time when most cases were found in the Stockholm region. That national prohibition was repealed from October 1, 2020, in consideration of the emotional health toll on the residents at these facilities. However, regions have asked to re-introduce the prohibition in areas where they see an increase in cases.
The FHM announced on October 13, 2020, that it would allow regional responses, such as setting the maximum number of persons allowed at an establishment and adjustment of operating hours.
The Stockholm Region (SLL) announced rules on October 12, 2020, requiring all who share a household with a person who has tested positive for COVID-19 to quarantine. Prior to this date only symptomatic household members were asked to quarantine. The new requirement to quarantine still does not include school-aged children who are recommended to attend school unless they show symptoms.
On October 20, 2020, the FHM together with the responsible infectious disease control physician in the Region of Uppsala issued recommendations (allmänna råd) specific to the Region of Uppsala, which include advice against traveling by public transport and advised persons living in Uppsala not to socialize outside of their household unit.
9. Is there any oversight of the COVID-19 response?
Several different authorities oversee Sweden’s COVID-19 response. All actions taken by government agencies, such as the FHM, fall under the authority of the Riksrevisionen (Swedish National Audit Office), an independent organization under the Swedish Parliament with a mandate to perform financial and performance audits of the government, its offices and agencies, as well as the courts. (2 § Lag om revision av statlig verksamhet (SFS 2002:1022).)
All agencies that deal with health care are also subject to review by the Health and Social Care Inspectorate (Inspektionen för vård och omsorg (IVO)). The IVO has so far initiated an investigation into the spread of COVID-19 at elder care facilities, including claims that most elderly home residents were given palliative care instead of ICU care. Official figures from the FHM show that 5,269 persons over the age of 70 have died from COVID-19, whereas only 646 persons in that age group have received ICU care as of October 20, 2020.
In addition to the general oversight authorities mentioned above,the Swedish government established a specific Corona Commission on June 30, 2020. The Commission is tasked with evaluating the measures taken by the government, government agencies, regions, and municipalities to limit the spread of COVID-19 and its effects, and to compare the measures taken by the Swedish government with those implemented by other countries, as well as their effectiveness. The commission must deliver a final report by February 2022, before the national parliamentary election in September 2022.