Termination for cannabis – when is it admissible?

TL;DR

• Ordinary dismissal: almost always lawful, subject to notice (OR Art. 335c).
• Summary dismissal: only for good cause (OR Art. 337) – e.g. intoxication on duty.
• Abusive: dismissal for private off-duty use with no work impact.
• If abusive: up to 6 months' salary compensation (OR Art. 336a).

Summary dismissal under OR Art. 337

The employer must show “good cause” that makes continuing the employment unreasonable. Intoxication on duty, repeated ignoring of a warning, or use on premises meet the threshold.

Mere presence of THC in urine without concrete work impact is not enough – summary dismissal is then contestable.

When is the dismissal abusive?

• If only private off-duty use with no work link is invoked.
• If no warning was given though it was reasonable.
• If discriminatory motives play a role (origin, belief).
• If the employer uses the motive to bypass protection periods.

The employer's duty of care and occupational safety

Under the Swiss Code of Obligations and the Employment Act, the employer bears a comprehensive duty of care for the health and safety of all employees in the company. This duty obliges them to take appropriate measures to systematically prevent accidents and hazards in the workplace. If there is a reasonable suspicion that the consumption of cannabis impairs performance or safety in the workplace, the company must intervene. This applies in particular to sectors with high hazard potential, such as construction, logistics, or transport, where even minor impairments can have serious consequences.

At the same time, Swiss employment law protects the personal rights of employees. Private consumption in one's free time, which has no impact on work performance or operational safety, is fundamentally outside the employer's authority to issue instructions. A blanket ban on legal CBD consumption or private THC consumption outside working hours is hardly enforceable legally, as long as the capacity to work is fully given the next day. Only when recreational consumption demonstrably affects working hours, for example through residual THC in the blood, does a legitimate ground for dismissal arise for the employer.

• The statutory duty of care obliges employers to ensure operational safety.
• Increased duties of care apply in safety-sensitive professions such as transport or construction.
• The protection of personal rights limits the authority to issue instructions regarding private recreational consumption.
• Restrictions on private life are only permissible if they are directly related to the employment relationship.

Detectability and the issue of drug testing in the workplace

A central point of contention in terminations due to cannabis is the detection methodology. Conventional urine tests only detect inactive metabolites, which can remain in the body for weeks after actual consumption. A positive urine test therefore by no means proves that the person concerned was under the influence of THC during working hours or was unfit to drive. Such tests are therefore unsuitable for a legally secure assessment of current fitness for work. Employers who base a termination solely on a positive urine test risk it being classified as abusive by a court.

Furthermore, drug tests in the workplace cannot be carried out without further ado in Switzerland. They represent a significant intrusion into personal integrity and generally require the explicit consent of the employee or a clear contractual basis, for example in the collective employment agreement or the individual employment contract for safety-critical functions. If an employee refuses a drug test without cause and without such a contractual basis, this must not automatically be interpreted as an admission of guilt or used as the sole reason for summary dismissal.

• Urine tests only detect past consumption, not current impairment in the workplace.
• Drug tests without cause and without a contractual basis generally violate personality rights.
• For safety-sensitive professions, specific testing agreements can be made in the employment contract.
• A positive test alone rarely justifies summary dismissal without proven performance impairment.

Special considerations for medical cannabis and statutory pilot trials

Since the amendment to the law in August 2022, medical cannabis can be prescribed by doctors in Switzerland without an exceptional permit from the BAG. Employees who take cannabis as a medically prescribed medication enjoy special protection, but must also not endanger safety in the workplace. Anyone who consumes medical cannabis should proactively inform their employer, especially in the case of safety-relevant activities. A termination issued solely on the basis of a medically indicated and properly declared therapy can be classified as discriminatory and thus abusive, provided that the capacity to work is demonstrably maintained.

Another special feature concerns participation in government-approved pilot trials for the controlled sale of cannabis in various Swiss cities. Although participation in such a scientific project legalises acquisition and consumption within the framework of the trial, it does not exempt participants from their obligations under the employment contract. Here, too, the strict principle applies that consumption must not impair work performance. Employers cannot forbid participation as such, but they can demand compliance with operational safety regulations and full performance capacity during agreed working hours.

• Since August 2022, medical cannabis can be prescribed by doctors without a special permit from the BAG.
• Taking medical cannabis does not protect against consequences in the event of impaired capacity to work.
• Participants in cantonal pilot trials must comply with operational safety regulations unchanged.
• Dismissal due to necessary medical treatment can be classified as abusive.

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