What was once considered impossible in Germany has been a reality since April 1st: the consumption and cultivation of cannabis is now legal – but only under certain conditions. Adults are allowed to carry up to 25 grams, at home up to 50 grams per person is allowed – as well as growing up to three plants.
The new Cannabis Act (CanG) enables cannabis to be purchased through non-commercial cultivation associations. Consumption is generally permitted in public spaces, bars and even in the beer garden. But what does it look like in the microcosm of the workplace, where different rules apply than in the private sector?
“The consumption of cannabis is now legal, regardless of the employer’s opinion. The legislature has decided,” explains Pascal Croset, a labor law specialist. But special rules apply in the workplace, similar to alcohol, which has long been legal. “To be clear: People are allowed to smoke weed. But it’s better to avoid it while at work. Otherwise you could face dismissal.”
“The basic rule is: employees owe ‘untroubled work performance’,” says Croset. It must therefore not be impaired by the consumption of alcohol or cannabis. “Conversely, this means: Employees are allowed to consume smaller amounts as long as these do not impair their work performance or reduce their attention.” This applies at least to alcohol. “The extent to which this applies to cannabis remains to be seen.”
But is the question even relevant? “Of course you can now ask: Who will smoke weed at work? My experience shows that everything that is forbidden in the workplace sometimes still happens,” says Croset. With the legalization of cannabis, consumption will be observed in the near future and will have an impact on the employment relationship.
Croset gives examples from the new legal gray area: “Imagine an employee rolling a joint in the canteen to smoke on the way home. Is that then a private matter? Or think of a bus driver who is due to residual tiredness ‘ proceeds. Is a drug test then appropriate? Or to a banker who has a box of Marlboros and a long OCB rolling paper on her desk. A shocked customer cancels his account. Can the employee be warned as a result? You can see: Smoking weed brings conflicts into the business employment relationship.”
According to the expert, a drug test is not permitted even if there is suspicious behavior. Also no immediate consultation with the company doctor. “But: The employer could document unusual behavior: disorientation, slurred speech… and collect evidence.” The basic rule is: occupational safety first. If an employee appears “stoned,” the employer must or may send him or her home.
Can a company have a “no stoners in our company” rule? Croset says no: “Of course there are bosses who strictly reject the consumption of cannabis and would also like to keep recreational cannabis users away from their company.” But such a ban is not permissible. In their free time, employees can do whatever they like. “The law is the law,” argues Croset, “and applies to everyone.”
