Cannabis Act: effects on employment law

The most important regulations of the new Cannabis Act at a glance:

• Consumption and possession: Certain amounts of cannabis are permitted for people aged 18 and over;
• Public space: 25 grams for personal use, possession up to an upper limit of 50 grams of dry flowers;
• Private cultivation: cultivation of three plants up to 50 grams of dried flowers;
• From July: Community cultivation in non-commercial cultivation associations (Cannabis Social Clubs). Club members can obtain limited quantities (25 grams / day and a maximum of 50 grams / month)
• Remain prohibited: Cannabis edibles (hash cookies etc.)

So far so good. But now let's take a closer look at what employees and employers need to consider in the future.

No. Even if the use of cannabis should be legal in the future, this is not a license for employees to smoke weed at the workplace as they please. This is because employees are obliged to perform their work „unimpaired“ and free from influence. Even if cannabis consumption is not officially prohibited on company premises, this principle still applies. In addition, the duty of care requires employers to take care of the health and safety of their employees. If cannabis is used freely, there is at least an increased risk that this duty of care could be breached.

Yes, if an employee can no longer perform their work with a clear head due to cannabis consumption, this may justify a warning under certain circumstances. This is also the case if changes in character and behavior occur after cannabis consumption. The following principle applies: employees owe employers work performance that is not impaired by anything.

The employer also has a duty of care and must therefore ensure that all employees can carry out their work unharmed. If there is a reasonable suspicion that an employee is under the influence of drugs, the company must intervene and prohibit the employee from continuing to work for the time being and send them home. There is a risk of criminal prosecution if an accident occurs in such a situation and other employees are injured. After intoxication, the employees concerned may face further consequences under employment law, such as a warning or, in the worst case, dismissal.

No. First and foremost, employees may spend their free time as they wish and are free in their behavior from an employment law perspective. This also means that employees may consume cannabis within the permitted legal framework, for example on the way home from work (consumption on the way to work is not recommended due to the obligation to work without interruption and the employer's duty of care).

The only requirement is that the employee must be able to return to work „unimpaired“ and thus be able to perform their work.

An important exception: Even outside working hours and outside the company premises, an employee can be required to behave in accordance with certain rules when wearing work clothes. For example, employees may be prohibited from smoking a joint or consuming alcoholic beverages while wearing work clothes.

An absolute ban applies, for example, to bus, truck and train drivers as well as pilots. Anyone who turns up for work intoxicated risks immediate dismissal and criminal prosecution in the event of damage or accidents.

It is very sensible to promptly review existing company regulations and adapt them as a result of the new Cannabis Act. It is possible to issue a ban on cannabis consumption on the entire company premises via the right to issue instructions, similar to the situation with alcoholic beverages. Employee representatives should be consulted on the new regulations, as should a company doctor. Information events and advisory services are also possible measures. In this way, satisfactory solutions can be found for all parties involved.