Cannabis legalization and its consequences under employment law

Cannabis legalization in Germany

The Cannabis Act, which primarily legalizes the consumption and possession of cannabis to a certain extent, came into force in Germany on 1.4.2024.  

Cannabis ban possible in the workplace?

Despite the legalization of cannabis, the principles of employment contract obligations between employers and employees will not change for the time being. Above all, this also means that employees may not put themselves in such an intoxicated state by consuming cannabis that it makes it impossible for them to perform their work properly. In order to avoid possible conflicts against this background, appropriate regulations should be made in the company.

Employers can prohibit the consumption of intoxicants in the workplace as part of their right to issue instructions. The right to issue instructions relates solely to the company sphere and literally ends “at the factory gates”.

Accordingly, it is not possible for employers to prohibit their employees from consuming cannabis privately. However, this can only apply as long as the private consumption does not affect the employment relationship or work performance. If employees consume cannabis in their free time and arrive at work intoxicated in the morning, this boundary quickly becomes blurred. As part of their duty of care, employers are required in this case to critically question whether employees are actually fit for work. After all, employers are responsible for the protection and health of their employees in the workplace. 

Create company regulations at an early stage

Employers are well advised to introduce company regulations now so that the Cannabis Act does not become a license for employees to consume cannabis on company premises and/or during working hours. Awareness should also be created among the workforce that private use of cannabis can also have an impact on the ability to work. 

There is no one-size-fits-all answer as to how new rules can best be introduced. In most cases, however, it is advisable to put the rules in writing. Whether the cannabis ban is already agreed in the employment contract, in a supplementary agreement to the employment contract, in a company policy or in a company agreement should be clarified on a case-by-case basis. 

Do not forget: Involve the works council

Companies with a works council should make sure to involve their works council before introducing a cannabis ban. Corresponding regulations concern the organization of the company, serve to prevent accidents at work and ensure compliance with health protection and are therefore subject to co-determination. 

Possible sanctions for violations

If employees violate a company cannabis ban, there are various options for action under labor law. Warnings and even dismissal may be considered in this regard. As always, it depends on the individual case. 

If no explicit cannabis ban has yet been introduced in the company, but employees nevertheless appear intoxicated at the workplace and therefore cannot be deployed, this may also be sanctionable. 

Conclusion

Employers are now well advised to give concrete consideration to how and to what extent the issue of cannabis use should be handled in the company. Appropriate measures should ideally be implemented in the short term, and existing regulations on the use of intoxicants should also be reviewed to ensure they are up to date. We are happy to support you in this process.