How will the partial legalization of cannabis impact employers? – Health and security

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DO EMPLOYERS NOW HAVE TO TOLERATE CANNABIS USE IN THE WORKPLACE OR DURING EMPLOYEE LUNCH BREAK? TO ANSWER THIS QUESTION, LET’S REVIEW THE EMPLOYER’S RESPONSIBILITIES REGARDING DRUG USE.

Cannabis is the most widely used illicit drug in Luxembourg. After a long political debate, it has now been decided to proceed in stages towards the legalization of cannabis, at least to some extent. Invoice No. 8033 (the “Invoice”) has just been filed, introducing first steps to relax the historically repressive approach to cannabis. The objective of this first stage is not to legalize this substance without limit, but to allow a recreational use and to reduce the penalties in the event of possession or personal use only.

But should employers now tolerate cannabis use in the workplace or during employee lunch breaks? To answer this question, let’s review the employer’s responsibilities regarding drug use.

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

The answer here is an emphatic yes. The bill will only decriminalize the cultivation of four plants per household (domestic community) in the home or place of habitual residence, and the private consumption of such cannabis in that home, by adults.

Consumption in public remains illegal in all circumstances. However, the penalties for this have been significantly reduced. Since 2001, consumption is no longer punishable by a prison sentence but only by a fine of 251 to 5,000 euros. The bill further reduces this fine range between 25 and 500 euros; alternatively, the police can issue a warning with a fine of 145 euros.

Cannabis consumption in the workplace remains an aggravating circumstance for users and 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 result with regard to consumption on company premises.

Because the use of cannabis outside the home is a crime, the employer can (and should) prohibit its use in the workplace.

The situation is less clear cut for employees in telework, because they do not commit an offense by consuming cannabis during working hours. However, employers can already prohibit the use of legal products such as alcohol and cigarettes while working, and therefore should also have the right to prohibit cannabis. Companies should consider modifying their internal regulations and codes of conduct accordingly.

2) Is possession of cannabis still illegal?

Possession of cannabis outside the home remains an offense in all circumstances. However, carrying or possessing up to 3 grams solely for personal use will only incur the warning of reduced fine or fine mentioned above.

So while possession of even a small amount of cannabis anywhere outside the home is prohibited, there is no increased penalty for doing so in the workplace.

Nor does all this imply that an employee can automatically be sanctioned if his employer discovers that he was in possession of this substance. Although the Court of Appeal ruled in 2013 that possession of just 0.1 grams of heroin in the workplace warrants immediate dismissal, cannabis is not a hard drug. Moreover, if the sum held is intended to be consumed outside work, possession is understood as an act of private life which does not directly affect the quality of the performance of the work. 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 clearly visible hemp leaf on the label?

CBD (cannabidiol) products are legal as long as they have a THC content of less than 0.3%. Oils, capsules, herbal teas, superfoods, supplements, chocolates, candies and cookies can be bought legally in a growing number of stores and online.

From an occupational health and safety perspective, it is debatable whether the effects of these products are strong enough to warrant employers’ concern. At present, Luxembourg case law and legislation is rather unclear as to the degree to which employers must respect an employee’s private choices. Since CBD products are legal, an employer prohibiting smoking of these products but allowing cigarettes would pose a problem of equal treatment. The same issue also applies to pro-cannabis clothing (t-shirts, pendants, earrings, etc.).

Since employers are called upon to educate the public about drugs and implement anti-drug policies, and can ban alcohol in the workplace, courts would likely accept an employer’s decision to ban the CBD. But since it is a legal substance with seemingly minimal impact on the quality of the work, any disciplinary action must be proportionate.

At the same time, some are also asking employers to explicitly allow the consumption of CBD products for workplace wellness. The debate is therefore far from over and divergent opinions remain.

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

An employee may have consumed cannabis (now, even legally) before reporting to work. In many cases, the employer may not even realize it. But they might learn it from other sources, smell it on the employee, or notice clues in their behavior (slow reactions, difficulty concentrating, etc.) or appearance (red eyes, etc.) – signs which can however be misleading.

Under occupational health and safety rules, employers are required to ensure the safety of the employee concerned and that of his or her co-workers. Therefore, for work of a certain nature, and especially for risky jobs, such signs should not be ignored. Prior suspension from any form of hazardous work will be required as a precautionary measure.

Beyond that, however, employers have relatively few options. Indeed, the law does not explicitly authorize screening, for example by a rapid drug test (usually urine), because the most accurate tests require a blood sample. Nor can such a test be legitimized by the consent of the person, since it would be consent given by a subordinate under pressure – and, if the test is positive, under the influence of narcotics. Luxembourg case law on the subject is scarce. One thing to remember is that a balance must be found between the interests of the employer, who must ensure security, and the privacy of the employee. The employer should have legitimate reasons and take a proportionate approach. Screening must be limited to high-risk jobs in which a serious incident has occurred and must be carried out by the occupational physician.

According to AAA recommendations, employees who are under the influence of drugs and who are clearly no longer able to perform their jobs safely should be removed from the workplace; if necessary, an aptitude test must be organized by the competent occupational health service. Occupational medicine services generally intervene when the request is justified.

And remember that when the behavior constitutes an offence, the employer can also choose to involve the police.

However, under no circumstances are employers authorized to institute preventive or generalized drug testing.

5) What are the specific driving risks?

Although some private use of cannabis will be permitted in the future, the legal limits when driving a motor vehicle remain unchanged. Everyone’s metabolism is different, but the level of THC in the blood usually remains above the legal limit of 1 nanogram per milliliter for several hours or even days.

This very low limit reflects the zero tolerance approach adopted by the legislator. A regular cannabis user will therefore not be able to occupy a position requiring driving on public roads. If the employer nevertheless allows such a person to drive for the company, he himself risks being fined and even prohibited from driving for having authorized the illegal driving.

The use of cannabis is becoming widespread among the active population, and the legal framework will soon be adapted to relax the restrictions surrounding it. In order to properly manage the resulting risks, companies need to implement or revise their internal policies so that the rules are clear on the day something actually happens.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.


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