Cannabis use in the workplace

Cannabis use has been legal with restrictions since April 1, 2024. What consequences and problems does this have for employers?

First of all, the law on the legalization of cannabis does not contain any regulation that prohibits cannabis use in the workplace.

However, there may be clear legal regulations, such as § 4a para. 1 sentence 1 LuftVG, which prohibits pilots from flying an aircraft under the influence of alcohol or other psychoactive substances. On the other hand, employers can use their right to issue instructions to prohibit the consumption of cannabis during working hours or create provisions in employment contracts.

However, if neither a legal regulation prohibits the use of cannabis nor a company ban by the employer exists, it must be decided on a case-by-case basis whether consumption during working hours is permitted.

As is so often the case in the legal context, it depends on the exact circumstances of the individual case.

What is relevant here is whether the employee is still able to fulfill his or her contractual obligations with the care owed under the employment contract. This is because not every consumption of cannabis leads to intoxication, which results in complete incapacity to work.

Cannabis use: consequences for employees under employment law

However, if an employee has consumed cannabis contrary to instructions under employment law, or if they are no longer able to fulfill their contractual obligations due to excessive consumption, the employer has the usual sanctions available under employment law.

Initially, it is no longer possible to work in such a condition. Employers may not employ insured persons who are clearly unable to carry out work without endangering themselves or others (Section 7 (2) DGUV Regulation 1).

This can also result in a warning or even dismissal if the employer can prove that the employee’s ability to work and work performance have been repeatedly impaired.

Ultimately, the employee loses his entitlement to remuneration, at least for the period of non-employment, and may also be liable for damages, as he is in breach of the obligations arising from his employment contract.

Employer’s duty to protect

On the other hand, the employer also has obligations, so-called duties of protection or care.

If the employer knowingly employs staff who are unable to work due to excessive cannabis consumption or if another employee is injured as a result, the employer may face criminal prosecution in extreme cases.

Fines for employees possible

The relevant trade association regulations also provide for high fines for employees who intentionally or negligently violate Section 15 Para. 2 DGUV Regulation 1 and thus put themselves in a condition that could endanger themselves or others (Section 32 DGUV Regulation 1 in conjunction with Section 209 I 1 No. 1 SGB VII).

Further obligations for employees are set out in §§ 15 Para. 1 and 16 ArbSchG.

Creation of information and regulations by the employer on cannabis use in the workplace (or before work)

Employers are generally advised to prohibit the use of cannabis in the workplace or, in any case, to lay down clear and unambiguous rules on consumption in the workplace. Such regulations can be laid down in employment contracts or specified as part of the employer’s right to issue instructions. In companies with a works council, co-determination in accordance with Section 87 Para. 1 No. 1 BetrVG must always be observed, so that a works agreement can also be a way of introducing a ban on drugs.

Such an employment contract provision should cover the following points:

  • Dealing with cannabis and alcohol as legal drugs on the one hand and illegal drugs on the other
  • Dealing with drugs and alcohol at company parties or company outings
  • Suspicion of drug use
  • Admissibility of employment bans
  • Admissibility of drug tests
  • Admissibility of medical examinations
  • Scope of duties to cooperate and legal consequences of refusal to cooperate

The employer can also organize company information events and campaigns on addictive substances or set up a company working group on addictive substances. Finally, the employer should intervene at an early stage in cases of abuse and can call in a drug counseling center for advice if necessary. Raising awareness of this topic is particularly important for young trainees, as experts warn of considerable health risks for this target group.

Employer can only initiate drug tests if there is a legitimate interest

In principle, the basic rights of employees, such as the basic right to physical integrity and the general right to privacy, stand in the way of drug testing by the employer without cause.

However, it is certainly possible to oblige the employee to take drug tests as part of the employment contract. However, this requires the employer to have a legitimate interest in carrying out such tests. It is important to note that drug tests must always be carried out on a voluntary basis. The employee must be informed in advance about the procedure, the purpose and the possible consequences of the test. In addition, the test results must be treated confidentially. Ultimately, however, the employer should focus on effective prevention rather than interfering with the employee’s fundamental rights.

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