Cannabis intoxication in the workplace?

Cannabis legalized

Since April 2024, the Cannabis Consumption Act (KCanG) has regulated when and where people can now possess and consume cannabis. Since then, possession of cannabis has been permitted at the place of residence or habitual abode. The law also permits the possessions of live plants. Consumption prohibitions limit the use of cannabis in public.

No legal prohibition of consumption

However, the use of cannabis in the workplace is not regulated, just as there are no legal bans on the consumption of other intoxicants (such as alcohol) in the context of labor law.

In addition, even the general legal rules of conduct which could have an effect under labor law are only applicable to the consumption of cannabis “while at work” to a limited degree.

For example, Section 15 (2) of the German Social Accident Insurance (DGUV) Regulation 1 contains a rule stipulating “that insured persons must not put themselves in a state which could endanger themselves or others by consuming alcohol, drugs, etc.”. Nevertheless, this does not prohibit the consumption of intoxicants. Moreover, secondary contractual obligations do not strictly ban “intoxication in the workplace” according to the case law of the Federal Labor Court (BAG). The Federal Labor Court assumes that employees are not permitted to put themselves in a state in which they can endanger themselves or others or can no longer perform their work.

A legal ban on the consumption of intoxicants during working hours simply does not exist.

Clear rules create security

In view of this, employers are advised to implement their own regulations governing the use of cannabis in the workplace via employment contracts or company agreements in the same manner as alcohol prohibitions.

Clear regulations in the employment relationship make it easier for employees to issue warnings for corresponding violations and to terminate the employment relationship in the event of repeated violations.

But what do these regulations need to address?

1. Prohibition of consumption during working (hours)
   Employers do not want their employees to be in an intoxicated state, especially during working (hours), as this creates an unavoidable risk of work accidents or sub-par work. The works council has no right of co-determination when companies implement corresponding regulations in a company agreement because they govern the actual working behavior.
2. Consumption prohibition at the company
   In addition, employers also need to set clear rules regarding cannabis use at the company outside of working hours. Companies are unlikely to welcome “stoner sessions” or “cookie parties” after work in front of the office or production hall. It is important to be aware that the works council has a right of co-determination when companies include these provisions in a company agreement as they concern the employees’ orderly conduct.

What about plants on the windowsill?

How can companies handle employees who want to cultivate their three permitted cannabis plants on their windowsill at the office? After all, employees may believe that their office is their “habitual residence” pursuant to the Cannabis Consumption Act (KCanG).

To nip this discussion in the bud, employers also need to address this issue in employment contracts or a company agreement and explicitly ban cannabis plants from the office windowsill.

What can we do for you?

Do you have any questions about cannabis consumption in the workplace? Do you need support with implementing the corresponding regulations? Do not hesitate to contact us!