[author: Jakob Friedrich Krüger]*

What does this actually mean for labour law?

Although possession of cannabis is now legal (up to certain limits), this does not mean that employees can work under the influence of cannabis. Even if there is no absolute ban on drug use either by law or by a corresponding employer order, cannabis consumption can be prohibited during the time before starting work, during breaks, and during the working time itself. What is always relevant is whether the employee is still able to perform the job duties with the care required under the employment contract. This is comparable to consuming alcohol at work. Further legal obligations apply in certain professions, for example with regard to the fitness to drive of professional drivers or where duties of care are exercised towards third parties, such as in schools or care facilities.

If an employee consumes cannabis in violation of legal regulations or employer instructions or is unable to fulfil the job duties due to cannabis consumption, the employer has the usual sanction options available under employment law. However, proof of consumption in particular can pose problems for employers. As a rule, a warning must first be issued. In certain situations, particularly in safety-critical areas such as driving vehicles, extraordinary (i.e. immediate) termination may also be possible. It remains to be seen whether case law will develop in a similar way to that on the subject of alcohol, which differentiates between behaviour-related and personal reasons for termination, depending on whether a pathological condition exists. Insurance coverage can also be problematic. If an employee has an accident under the influence of cannabis, the insurance company may refuse to pay.

Due to their duty of care, employers may also be required to temporarily release employees who are clearly under the influence of drugs from their work duties. If an employer knowingly employs employees who are unable to work and an accident occurs, this can have criminal consequences for the employer.

If an employer wants to create clear conditions, cannabis consumption should be completely banned. Employers can make such regulations via employment contracts or company agreements regarding the use of cannabis. An existing works council must be involved in this decision. Many employers already have regulations regarding drug and alcohol consumption, which should now be reviewed and adjusted if necessary. However, employers are not allowed to prohibit their employees from consuming during their free time, as long as they are fully operational again when they start work. Exceptions are conceivable if employees wear a uniform or other work clothing during their free time that identifies the employer.

In principle, carrying out drug tests that are not occasion-related represents an infringement on the employee’s general right to personal freedom or the right to physical integrity, depending on the type of test. Such a test is only permissible with the employee’s consent, which must be voluntary within the meaning of the law. The employee must be informed beforehand about the implementation, purpose and consequences of the test. An employee can be required to undergo drug tests under an employment contract if the employer has a legitimate interest in doing so. However, if there is any doubt about whether a legitimate interest exists, the requirement will only be permitted if there are concrete suspicions and the employee works in a safety-critical area. The collection of health data associated with conducting drug tests is subject to strict data protection regulations. The results of the test must be treated confidentially and may only be used for the purpose for which they were collected.

The legalisation of cannabis also affects employment relationships. Employers are well advised to make precautionary regulations regarding the handling of cannabis or to check existing regulations, for example in the employment contract or a works agreement, and adapt them if necessary.

*Kliemt.HR Lawyers

Source – JD Supra

https://www.jdsupra.com/legalnews/labor-law-and-cannabis-legalization-9976695/