Employment law implications of the partial legalization of cannabis in Germany

Partial cannabis legalization from 1 April 2024

From April 1 2024, adults aged 18 and over in Germany will generally be allowed to consume cannabis. It will be legal to carry up to 25 grams of cannabis, keep up to 50 grams at home for personal consumption and to cultivate up to three cannabis plants at home. In public, consumption will only be prohibited within sight respectively within 100 meters of various public institutions such as schools or sports facilities. As of July 2024, clubs for non-commercial cannabis cultivation may be legally established.

Potential effects on employment relationships

Due to this partial legalization, an increasing cannabis consumption as well as an increasing social acceptance of such is to be expected. This will likely also have an impact on employment relationships, e.g., due to employees performing worse at work, risking colleagues or equipment of the employer due to irresponsible consumer behavior.

However, even though cannabis use is now partially legalized, in work context well-known rules (still) apply as they did for consuming alcohol or other drugs in the past: employees may not put themselves in a physical constitution that interferes with their ability to properly perform their work. Also, it goes without saying that cannabis consumption must not result in employees exposing themselves or their colleagues to risks. This is particularly relevant for companies in security-sensitive areas.

As the boundaries between cannabis use that does not yet impair work performance and use that affects work performance in a detrimental way can be blurred, employers are recommended to expressly prohibit the consumption of intoxicating substances including cannabis in a working context. Thereby, the risks of any incidents in relation with cannabis consumption can be reduced.

Cannabis consumption outside of working hours

Outside of working hours, employees are generally free from instructions of the employer. Cannabis consumption in employees' free time is therefore generally not relevant under employment law. However, this does not apply if the employee's recreational behavior has a detrimental effect on their employment relationship. For example, loss of image is conceivable if the intoxicated employee is associated with the employer through business attire. Moreover, (excessive) cannabis consumption in a short period before starting to work can bear huge risks for the employer and colleagues, e.g. if the employee is working unfocused due his ongoing intoxication and thus overlooking important aspects or operating machines improperly.

Required actions and possible sanctions available to the employer

Due to the potential risks of intoxicated employees for employers a reliable way to determine that an employee is intoxicated will likely be in demand. However, reliable ways of determination such as drug tests may, in general, not be ordered by employers. An exception may apply if the employee is contractually obliged to perform hazardous activities.

If it can be assumed based on sufficient indications (e.g. behavior) that an employee is unable to perform his contractual duties due to intoxication without risking himself or others, the employer must prohibit such work actions. However, the employee may still perform tasks which do not bear any risks for himself or his colleagues. In case such tasks are not available, due to his duty of care the employer must organize a safe way home for this employee.

Obviously, an employee is not entitled to remuneration if he is unable to fulfil his contractual duties due to his intoxication caused by cannabis use. Also, such behavior having detrimental impacts on the employment relationship constitutes a breach of contractual duties. As a result, the employer has the usual sanctions available under German employment law. For example, an employee who is intoxicated due to cannabis consumption during working hours can initially be warned and, in the event of repeated violations, dismissed, if, because of cannabis consumption, he is unable to perform the work owed as usual. In so far it does not matter whether cannabis consumption is explicitly prohibited by the employer as it already constitutes a breach of contract if the employee has placed himself in a condition that has impaired his ability to work.

In serious cases, e.g., loss of work performance due to cannabis consumption in safety-relevant companies, an extraordinary dismissal may also be justified. Employees suffering from cannabis addiction may also be dismissed for personal reasons in the event of serious effects on operational processes.

Collective co-determination

If the use of cannabis is to be prohibited in the company, co-determination rights of the works council may need to be considered. If works council agreements already exist on the handling of alcohol, consideration can be given to extending these to the handling of cannabis.

Authored by  Michael Dluzynski and Marvin Ruth.