The Responsibility of Employers in Managing Illegal Substances and CBD in the Workplace

The employer cannot, however, ignore the regulations, in particular the Public Health Code (including article L. 3421-1) and establishing a general ban on the use of substances or plants classified as narcotics (cocaine, cannabis and cannabis resin, etc.), under penalty of criminal sanctions.

Furthermore, the employer is bound by a safety obligation requiring him to put in place prevention measures, information and training actions. as well as an organization and means adapted to protect its employees from risks to their safety or health, such as those caused by the consumption of illicit substances.

Thus, the internal regulations of the company can recall simple rules such as the prohibition of entering or remaining in the company under the influence of narcotics or the prohibition of introducing, storing or distributing such substances in the premises. work premises.

It may also provide for the use of saliva screening for drug addiction. This possibility is limited to employees whose state of influence under narcotics is, by the nature of their functions, likely to create a danger (driving vehicles, handling dangerous products or materials, etc.) and employees must be informed of the possibility of contesting the result of this test.

Finally, the internal regulations establish the nature and scale of disciplinary sanctions, including dismissal in the event of an infraction in the workplace.

The employer may therefore be required to terminate the employment relationship of one of its employees who has consumed illicit substances.

Thus, the consumption of cannabis in the workplace by an employee required to use heavy handling equipment as part of their duties, endangering both property and people, whether they are third parties to the company, or employees of the latter, characterizes serious misconduct justifying dismissal on this basis.

Likewise, the fact of storing narcotics in one’s workplace and without the knowledge of one’s employer constitutes serious misconduct justifying dismissal.

The same applies when the employee participates in drug trafficking at his workplace. The dismissal for serious misconduct of a night watchman who introduced, consumed and engaged in drug trafficking in her place of work, in this case a social reintegration residence, was thus deemed justified, while she “ had to, in view of its functions, in contact with a disengaged and vulnerable public, participate in the creation of a living environment that respects the rules ».

More delicate is the “treatment” of drug consumption which takes place outside of work time and/or place.

This consumption cannot in principle constitute a reason for dismissal as such, unless it has repercussions on work.

Case law accepts that a reason taken from the employee’s personal life can justify disciplinary dismissal if it constitutes a failure by the person concerned to fulfill an obligation arising from their employment contract.

This was the case of an employee, belonging to the “ safety critical personnel » of an airline, who had consumed hard drugs during stopovers between two flights and, finding himself under the influence of narcotics while carrying out his duties, had not respected the obligations provided for in his employment contract. work and thus put passengers at risk.

Thus, in the event of industrial tribunal dispute over the treatment of drug consumption at work, it will be examined, among other things, the measures put in place in the company in this respect and the nature of the employee’s functions in the event of a disciplinary measure notified against him due to this consumption.

The case law can, however, be, at the very least, finicky.

The dismissal of a bus driver who was accused of having voluntarily avoided a drug screening test organized by his employer as part of his safety obligation, which recalled in particular that « evading a check carried out by the police was equivalent to a positive check, as was apparent from the extract from the Sécuritéroute.Gouv site and the terms of its internal regulations expressly provided that the refusal to submit to these checks would lead to suspicion and a precautionary dismissal procedure pending summons ». The employer also argued that the employee had learned when he showed up at the workplace that a test was being organized, since he had had discussions with two colleagues, before hastily leaving the company under the pretext of not being able to attend. feel good. These elements were, however, not considered sufficient by the trial judges to establish “for sure» that the employee had deliberately left the company knowing that the screening tests were organized, in order to avoid them, and the doubt should benefit him.

Finally, regarding cannabidiol (CBD), it is a substance present in the cannabis plant (or hemp) and can be consumed and sold under certain conditions. Unlike cannabis, this substance may not be considered a narcotic product if, in particular, its tetrahydrocannabinol (THC) content is very low.

On this point, the Council of State canceled an order of December 30, 2021 prohibiting the sale of cannabis flowers and leaves with a THC level of less than 0.3%. Pending the publication of a new decree in this regard, CBD can be used either for therapeutic purposes or for well-being and relaxation purposes, and in the latter case can be used in different forms. (oils, candies, liquid for e-cigarettes, etc.).

Although all of its effects on public health have not yet been precisely established, it has nevertheless been noted that CBD can have undesirable consequences, including drowsiness.

Likewise, screening tests may not be conclusive depending in particular on the THC content.

In this context, the question of the use of CBD by employees at their workplace (or teleworking) may arise in relation to the execution of their missions and in particular the carrying out of dangerous work and/or driving of vehicles and machinery.

The internal regulations can then address this point and information and training measures linked, among other things, to occupational medicine can be put in place, like what is planned for narcotics.

Also note that in a judgment of June 21, 2023, the Criminal Chamber of the Court of Cassation considered that the offense of driving a vehicle while using drugs (Highway Code, article L. 235-1) was applicable to a person who has consumed CBD, a solution which can therefore have an impact in particular on employees, whose functions involve driving machinery.

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The management/sanction of illegal substances or those likely to be illegal (such as CBD) in the workplace is therefore largely left to the responsibility and discretion of the employer, while labor law regulations are almost non-existent and case law is, to say the least, casuistry. However, the consequences, particularly financial, can be significant in the event of litigation. Clarification would be welcome.