Legalisation of cannabis in Germany

What employers must now consider

Since 1 April 2024, the consumption and limited possession of cannabis has been permitted in Germany. But what consequences does legalisation have for the employment relationship? Are employees now allowed to consume cannabis during working hours? And what should employers bear in mind following the legalisation of cannabis?

Asking about the consumption of cannabis in the recruitment process

The consumption of cannabis is generally a personal matter. Asking about consumption in the recruitment process is therefore generally not permitted. However, there may be an exception if the employer has a legitimate interest in information about the consumption behaviour of potential employees. Such an interest usually exists when hiring for dangerous or safety-sensitive jobs (e.g. drivers, machine operators).

Consumption of cannabis during working hours

There is no general legal restriction on the use of cannabis and alcohol under labour protection law. However, the employee owes unimpaired work performance. If this is no longer the case as a result of cannabis consumption, the employee is in breach of their contractual obligations. Similar to alcohol consumption, the employer can also implement clarifying company regulations regarding cannabis consumption.

Prohibition of cannabis

Employers can prohibit the use of cannabis at work, taking into account the co-determination rights of the works council. In principle, employers cannot declare a general ban on private cannabis consumption. In strictly limited exceptional cases, however, a ban on consumption during a "necessary period" before starting work may be considered in order to ensure the employee's ability to work.

Drug tests for employees

The ordering of a drug test by the employee is only possible in exceptional cases and must be weighed up taking into account the circumstances of the individual case. The conditions under which a drug test may be ordered depend, among other things, on whether tests are ordered based on or independent of suspicion. The employer must always have a legitimate interest (e.g. particularly dangerous situation at the workplace), which outweighs the right to physical integrity and the general right to privacy. However, employers should bear in mind that a drug test can also provide evidence of long-term use. This entails the difficulty that the test result does not represent an actual reference for the current and specific incapacity to work, which leads to legal uncertainties.

Labour law measures for the use of cannabis

If the employee is unable to perform their work in accordance with the contract due to cannabis consumption, the measures under labour law can range from formal warnings to dismissal for conduct-related reasons, depending on the individual case. This applies in particular if safety in the workplace is jeopardised. The same also applies to cases in which the private use of cannabis has an impact on the performance of work (e.g. if the employee arrives at work intoxicated and is unable to perform their work in accordance with the contract due to their intoxicated state).

An employee who is no longer able to perform their work without jeopardising themselves or others as a result of intoxication does not have to continue to be employed for the working day. The employer has the option of sending the employee home. However, the employer should note that, as part of its duty of care, it may have to ensure that the employee can get home safely. The employee loses their entitlement to remuneration for this working day and may even be liable for damages.

Recommended action

In order to create legal clarity, employers should - as with alcohol consumption - draw up company rules or update existing policies and standard employment contracts. In this context, regulations on dealing with the consumption of cannabis on company premises, in the home office, at company parties or on company outings should also be taken into account. It is also worth taking a look at the company regulations on the use of company cars or company car agreements. If necessary, regulations on the inability to drive while under the influence of cannabis should be included there.