With the entry into force of the Act on the Controlled Use of Cannabis (Federal Law Gazette 2024 I No. 109 – CanG) on 01.04.2024, the legislator partially legalised the use of cannabis, whereby a distinction is made between use for medical (Medical Cannabis Act – MedCanG) and non-medical purposes (CanG). Cannabis and non-synthetic THC are now considered recreational substances and are not classified as narcotics, as was previously the case.
The law does not contain a general ban on the consumption of cannabis in the workplace. From the perspective of occupational health and safety law, Art. 10 CanG merely provides for an amendment to Sec. (5)(1) sentence 1 Workplace Ordinance (Arbeitsstättenverordnung – ArbStättV), according to which the regulation on the protection of non-smokers will be extended to smoke and vapours from cannabis products.
The use of cannabis becomes relevant for HR managers if the employee is in a state in which they are no longer able to properly fulfil their contractual obligations (Sections 241 (2), 242 BGB) or could endanger themselves or others (see Sec. 15 (2) DGUV Regulation 1). The problem is that there are currently no THC threshold values that can be used to reliably determine incapacity for work as limited or cancelled.
Tip for the practice
- In order to fulfil their duty of care, employers should regulate the handling of cannabis in the workplace, update risk assessments and define suitable measures to ensure the safety and health of employees.
- Any co-determination rights of the works council pursuant to Sec. 87 (1) No. 1 (regulatory behaviour) and No. 7 BetrVG (health protection) must be observed. Irrespective of this, information should be provided on the potential for addiction and how to avoid addiction in the workplace context.
