[Germany] Employment law and the partial legalisation of cannabis

Cannabis has been partially legalised in Germany and therefore an increased level of consumption and an increased social acceptance of cannabis use is likely to follow, together with impacts on employment relationships. Lexology offers an overview of the key information employers need to know.

Partial cannabis legalisation from April 1, 2024

As of April 1, 2024, adults aged 18 and over in Germany are generally permitted to consume cannabis. It is legal to carry up to 25 grams of cannabis, keep up to 50 grams at home for personal consumption and to cultivate up to three cannabis plants at home. 

In public, consumption will reportedly be prohibited solely within sight of, respectively, 100 metres of public institutions such as schools or sports facilities. From July 2024, clubs for non-commercial cannabis cultivation may be legally established.

Potential effects on employment relationships

Following the partial legalisation, Lexology says an increasing cannabis consumption and an increasing social acceptance of such is to be expected. This will potentially impact employment relationships with, for example, employees performing worse at work, putting colleagues or employers’ equipment at risk due to behaviour related to irresponsible consumption.

Lexology says, though cannabis use is now partially legalised, in the work context well-known rules will continue to apply as they have for consuming alcohol or other drugs in the past: employees may not put themselves in a physical constitution that interferes with their ability to properly perform their work. 

Cannabis consumption must not result in employees exposing themselves or their colleagues to risks; something particularly relevant for companies in security-sensitive areas.

Boundaries between cannabis use that does not yet impair work performance and use that affects work performance in a detrimental way can be unclear, therefore employers are recommended to expressly prohibit the consumption of intoxicating substances including cannabis in a working context. Thus reducing the risk of any incidents in relation to cannabis consumption.

Cannabis consumption beyond working hours

Outside of working hours, Lexology says employees are generally free from instructions of the employer. Cannabis consumption in employees' free time is therefore generally not relevant under employment law. This standard does not, however, apply if the employee's recreational behavior has a detrimental effect on their employment relationship. For example, loss of image is a possibility if the intoxicated employee is associated with the employer through business attire. Excessive cannabis consumption in a short period before starting work can also pose significant risks for the employer and colleagues, e.g. if the employee is unfocused due to ongoing intoxication and thus overlooking important aspects of their or operating machines improperly.

Required actions and possible sanctions available to the employer

There is likely to be demand for a reliable way to determine that an employee is intoxicated due to the potential risks of intoxicated employees for employers. But Lexology cautions that reliable ways of determination such as drug tests may, in general, not be ordered by employers. An exception could reportedly apply if the employee is contractually obliged to perform hazardous activities.

Lexology says that if it can be assumed based on sufficient indications (e.g. behaviour) that an employee cannot perform their contractual duties due to intoxication without risking themself or others, the employer must prohibit such work actions. However, the employee may still perform tasks that don’t carry risks for himself or his colleagues. If such tasks are not available duty of care obliges the employer to organise a safe way home for this employee.

An employee is not entitled to remuneration if unable to fulfil their contractual duties due to intoxication caused by cannabis use. Such behaviour having detrimental impacts on the employment relationship reportedly constitutes a breach of contractual duties. As a result, the employer has the usual sanctions available under German employment law. 

An employee who is intoxicated due to cannabis consumption during working hours, for example, can initially be warned and, in the event of repeated violations, dismissed, if, because of cannabis consumption, they are unable to perform the work owed as usual. It doesn’t matter whether cannabis consumption is explicitly prohibited by an employer. If the employee has placed themself in a condition that has impaired their ability to work, it already constitutes a breach of contract.

In serious cases, e.g., loss of work performance due to cannabis consumption in safety-relevant companies, Lexology says an extraordinary dismissal may also be justified. Employees suffering from cannabis addiction may also be dismissed for personal reasons in the event of serious effects on operational processes.

Collective co-determination

Where companies intend to prohibit cannabis use, co-determination rights of the works council may need to be considered. According to Lexology, consideration can be given to extending these to the handling of cannabis if works council agreements already exist on the handling of alcohol.

Source: Lexology

Cannabis has been partially legalised in Germany and therefore an increased level of consumption and an increased social acceptance of cannabis use is likely to follow, together with impacts on employment relationships. Lexology offers an overview of the key information employers need to know.

Partial cannabis legalisation from April 1, 2024

As of April 1, 2024, adults aged 18 and over in Germany are generally permitted to consume cannabis. It is legal to carry up to 25 grams of cannabis, keep up to 50 grams at home for personal consumption and to cultivate up to three cannabis plants at home. 

In public, consumption will reportedly be prohibited solely within sight of, respectively, 100 metres of public institutions such as schools or sports facilities. From July 2024, clubs for non-commercial cannabis cultivation may be legally established.

Potential effects on employment relationships

Following the partial legalisation, Lexology says an increasing cannabis consumption and an increasing social acceptance of such is to be expected. This will potentially impact employment relationships with, for example, employees performing worse at work, putting colleagues or employers’ equipment at risk due to behaviour related to irresponsible consumption.

Lexology says, though cannabis use is now partially legalised, in the work context well-known rules will continue to apply as they have for consuming alcohol or other drugs in the past: employees may not put themselves in a physical constitution that interferes with their ability to properly perform their work. 

Cannabis consumption must not result in employees exposing themselves or their colleagues to risks; something particularly relevant for companies in security-sensitive areas.

Boundaries between cannabis use that does not yet impair work performance and use that affects work performance in a detrimental way can be unclear, therefore employers are recommended to expressly prohibit the consumption of intoxicating substances including cannabis in a working context. Thus reducing the risk of any incidents in relation to cannabis consumption.

Cannabis consumption beyond working hours

Outside of working hours, Lexology says employees are generally free from instructions of the employer. Cannabis consumption in employees' free time is therefore generally not relevant under employment law. This standard does not, however, apply if the employee's recreational behavior has a detrimental effect on their employment relationship. For example, loss of image is a possibility if the intoxicated employee is associated with the employer through business attire. Excessive cannabis consumption in a short period before starting work can also pose significant risks for the employer and colleagues, e.g. if the employee is unfocused due to ongoing intoxication and thus overlooking important aspects of their or operating machines improperly.

Required actions and possible sanctions available to the employer

There is likely to be demand for a reliable way to determine that an employee is intoxicated due to the potential risks of intoxicated employees for employers. But Lexology cautions that reliable ways of determination such as drug tests may, in general, not be ordered by employers. An exception could reportedly apply if the employee is contractually obliged to perform hazardous activities.

Lexology says that if it can be assumed based on sufficient indications (e.g. behaviour) that an employee cannot perform their contractual duties due to intoxication without risking themself or others, the employer must prohibit such work actions. However, the employee may still perform tasks that don’t carry risks for himself or his colleagues. If such tasks are not available duty of care obliges the employer to organise a safe way home for this employee.

An employee is not entitled to remuneration if unable to fulfil their contractual duties due to intoxication caused by cannabis use. Such behaviour having detrimental impacts on the employment relationship reportedly constitutes a breach of contractual duties. As a result, the employer has the usual sanctions available under German employment law. 

An employee who is intoxicated due to cannabis consumption during working hours, for example, can initially be warned and, in the event of repeated violations, dismissed, if, because of cannabis consumption, they are unable to perform the work owed as usual. It doesn’t matter whether cannabis consumption is explicitly prohibited by an employer. If the employee has placed themself in a condition that has impaired their ability to work, it already constitutes a breach of contract.

In serious cases, e.g., loss of work performance due to cannabis consumption in safety-relevant companies, Lexology says an extraordinary dismissal may also be justified. Employees suffering from cannabis addiction may also be dismissed for personal reasons in the event of serious effects on operational processes.

Collective co-determination

Where companies intend to prohibit cannabis use, co-determination rights of the works council may need to be considered. According to Lexology, consideration can be given to extending these to the handling of cannabis if works council agreements already exist on the handling of alcohol.

Source: Lexology