Lus Laboris: Labor law and cannabis legalization

Ius Laboris

[author: Jakob Friedrich Krüger]*

What does this actually mean for labour law?

Cannabis in the workplace: allowed or banned?

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.

Consequences of cannabis abuse

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 alcoholwhich 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.

Duty of care

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.

Control options

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.

‘Trust is good, control is better’ – drug testing in the workplace

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.

Takeaway for Employers

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

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Author Bios

Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Elvin Rodríguez Fabilena


Julie Godard
Carl L Rowley -Thompson Coburn LLP

Jerry Chesler – Chesler Consulting

Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

William Bogot – Fox Rothschild

Valerio Romano, Attorney – VGR Law Firm, PC

Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild