How will the partial legalisation of cannabis impact employers?

Cannabis is the most widely used illegal drug in Luxembourg. After protracted political debate, it has now been decided to proceed in stages toward legalising cannabis, at least to some extent. Bill no. 8033 (the “Bill”) has just been tabled, introducing initial measures to relax the historically repressive approach to cannabis. The aim of this first step is not to legalise this substance without limit, but to permit recreational use and reduce the penalties for possession or use that is solely personal.

But must employers now tolerate cannabis consumption in the workplace or during employee lunch breaks? To answer this question, let us review the employer's responsibilities with regard to drug use.

1) Can employers prohibit the use of cannabis in the workplace?

The answer here is a definite yes. The Bill will only decriminalise the cultivation of four plants per household (communauté domestique) in the home or place of habitual residence, and the private consumption of that cannabis in that residence, by adults.

Consumption in public remains illegal in all circumstances. However, the penalties for it have been greatly reduced. Since 2001 consumption has no longer been punishable by a prison sentence, instead only incurring a fine of 251 to 5,000 euros. The Bill further reduces this fine range to between 25 and 500 euros; alternatively, police officers can issue a warning bearing a fine of 145 euros.

It remains an aggravating circumstance for users to consume cannabis while in the workplace, and doing so can incur a prison sentence of up to 6 months and a fine of 2,500 euros. Thus, the new legislation will not change the outcome with respect to consumption on company premises.

Because using cannabis outside the home is an offence, the employer can (and should) prohibit its consumption in the workplace.

The situation is less clear-cut for teleworking employees, as they do not commit an offence by using cannabis during working hours. However, employers can already prohibit the use of legal products such as alcohol and cigarettes during work, and so should be entitled to prohibit cannabis, too. Companies should consider amending their internal regulations and codes of conduct to reflect this.

2) Is cannabis possession still illegal?

Possessing cannabis outside the home remains an offence in all circumstances. However, transporting or holding no more than 3 grams solely for personal use will only incur the reduced fine or fine-bearing warning mentioned above.

Thus, although possessing even a small amount of cannabis anywhere outside the home is prohibited, there is no increased penalty for doing so at the workplace.

Nor does all this imply that an employee can automatically be disciplined if their employer discovers that they were in possession of this substance. Although the Court of Appeal ruled in 2013 that possession of even just 0.1 grams of heroin in the workplace justifies dismissal with immediate effect, cannabis is not a hard drug. What’s more, if the amount held is intended to be consumed outside of work, the possession is understood to be an act of private life that does not directly affect the quality of work performance. Employers should take a measured approach.

3) What about CBD products?

If employees are allowed to bring their own coffee or tea into the office kitchen, can the employer order a certain employee to remove their box of CBD tea with a hemp leaf clearly visible on the label?

CBD (cannabidiol) products are legal as long as they have a THC content below 0.3%. Oils, capsules, herbal teas, superfoods, supplements, chocolates, sweets and biscuits can be purchased legally in a growing number of shops, and online.

From the standpoint of occupational health and safety, it is debatable whether the effects of these products are strong enough to justify employer concern. At present, Luxembourg case law and legislation are rather unclear about the degree to which employers must respect an employee's private choices. Because CBD products are legal, an employer prohibiting smoking such products but allowing cigarettes would raise a problem of equal treatment. The same issue also applies to pro-cannabis clothing (tee-shirts, pendants, earrings, etc.).

As employers are called upon to raise drug awareness and implement anti-drug policies, and can ban alcohol in the workplace, the courts would likely accept an employer’s decision to prohibit CBD. But because this is a legal substance with an apparently minimal impact on the quality of work, any disciplinary measures should be proportionate.

At the same time, some are also calling for employers to explicitly allow the consumption of CBD products for the sake of workplace well-being. The debate is therefore far from over, and diverging opinions remain.

4) What should an employer do if they suspect an employee of cannabis consumption?

An employee may have consumed cannabis (now, even legally) before reporting for work. In many cases, the employer may not even realise it. But they could learn of it from other sources, smell it on the employee, or notice clues in their behaviour (slow reactions, trouble concentrating, etc.) or appearance (redness of the eyes, etc.) – signs that can, however, be misleading.

Under workplace health and safety rules, employers are obliged to ensure the safety of the relevant employee and that of their colleagues. Therefore, for work of a certain nature, and especially for risky jobs, such signs should not be ignored. A preliminary suspension from all forms of hazardous work will be necessary as a precautionary measure.

Beyond that, however, employers have relatively few options. This is because the law does not explicitly allow for screening, for example by a rapid drug test (usually of urine), as the most accurate tests require a blood sample. Nor can such a test be rendered legitimate by the person’s agreement, as this would be consent given by a subordinate employee under pressure – and, if the test is positive, under the influence of drugs. The Luxembourg case law in this area is sparse. One thing to remember is that a balance must be struck between the interests of the employer, who must ensure safety, and the privacy of the employee. The employer should have legitimate reasons and take an approach that is proportionate. Screening must be limited to high-risk jobs in which a serious incident has occurred, and must be performed by the occupational physician.

According to AAA recommendations, employees who are under the influence of drugs and are clearly no longer able to perform their work safely should be removed from the workplace; if necessary, a fitness test should be arranged by the responsible occupational health service. Occupational health services will generally intervene when the request is justified.

And do not forget that where the behaviour constitutes an offence, the employer can also choose to involve the police.

However, under no circumstances are employers allowed to institute preventive or generalised drug screening.

5) What specific risks are posed by driving?

Although some private use of cannabis will be permitted in the future, the legal limits when operating a motor vehicle are unchanged. Everyone’s metabolism is different, but the level of THC in the blood generally remains above the legal limit of 1 nanogram per millilitre for several hours, and sometimes even days.

This very low limit reflects the zero-tolerance approach taken by the legislator. A regular cannabis user will therefore be ineligible to occupy a position that requires driving on public roads. If the employer nevertheless permits such a person to drive for the company, they risk being fined and even banned from the road themselves for allowing illegal driving.

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Cannabis use is becoming more widespread among the working population, and the legal framework will soon be adapted to loosen restrictions around it. In order to appropriately manage the resulting risks, companies must implement or review their internal policies so that the rules are clear the day something really does happen.