Cannabis, Tenancy Law and Employment Law: Your Rights and Obligations

The legalization of cannabis through the KCanG has permitted private consumption and home cultivation within certain limits. But what does this mean for coexistence in rented flats? And what rules apply at the workplace? The truth is: in both areas, considerable legal grey zones exist that neither the KCanG nor existing tenancy and employment law fully resolve. This article examines the key questions and provides practical guidance for tenants, landlords, employees and employers.

## Part 1: Cannabis and Tenancy Law

### Home Cultivation in a Rented Flat: Fundamentally Permitted

The KCanG permits home cultivation of up to three female flowering cannabis plants per adult in one's own home. This right also applies to tenants. The landlord cannot categorically prohibit home cultivation within the legally permitted limits, as it is an activity expressly authorized by the federal legislature. A lease clause that generally prohibits the cultivation of legal plants would, according to the prevailing legal opinion, be ineffective.

However, there are important restrictions. Cultivation must not damage the rented property and must be conducted so as not to cause disturbances for other residents. Specifically, this means: the plants may not cause damage to walls, floors or installations, humidity must not be raised to the point of creating a mould risk, the electrical installation must not be overloaded, and fire safety regulations must be observed.

### Security Obligations: Preventing Access by Minors

The KCanG requires that cannabis and cannabis plants be stored so that minors cannot gain access. In a rented flat, this means: plants and harvested cannabis must be kept in a lockable room or cabinet. This obligation exists regardless of whether minors actually live in the household – the decisive factor is the possibility of access, such as by visiting children.

For landlords, this is relevant: if a tenant violates the security obligations and thereby endangers minors, this can constitute a breach of the lease and, in extreme cases, justify termination without notice.

### Odour Nuisance: The Central Conflict Issue

By far the most common point of contention between cannabis-using tenants and their neighbours is odour. Cannabis – particularly flowering plants and smoke consumption – produces an intense, characteristic smell that can penetrate through walls, doors and ventilation systems into neighbouring flats.

The general principle is: every tenant has the right to unimpaired use of their flat. Severe odour nuisance can constitute an impairment of the use of the tenancy, entitling the affected neighbour to a rent reduction. Case law on cannabis odour is still sparse, but analogies to tobacco smoke are applicable: the Federal Court of Justice has ruled that tobacco smoke entering neighbouring flats can constitute a disturbance of possession.

For cultivation: the smell of flowering cannabis plants can be significantly reduced with activated carbon filters. Anyone growing in a rented flat should consider this measure mandatory – not just out of consideration but also for protection against tenancy law consequences.

For consumption: smoking in the flat is fundamentally covered by the permitted use of the tenancy if no explicit lease clause prohibits it. However, excessive smoking that leads to permanent odour nuisance for neighbours can constitute a breach of tenancy obligations. The boundary runs where the socially adequate use of the flat ends and impairment of third parties begins. Vaporizers produce significantly less odour than joints or pipes and can be a pragmatic solution.

### Lease Provisions: What Is Permissible?

Landlords can include provisions regarding cannabis cultivation and consumption in new leases or by mutual amendment of existing contracts. Permissible provisions include: requirements for odour prevention (e.g. obligation to install activated carbon filters), limitations on cultivation area (e.g. maximum one room), ventilation specifications and fire safety requirements. What is not permissible, however, is a blanket prohibition of home cultivation within the legally permitted limits.

In homeowner associations (WEG), the owners' meeting can adopt rules for cannabis cultivation in the complex by majority vote, such as odour prevention requirements in common areas. A complete ban on cultivation within private ownership areas is, however, disputed.

### Termination Due to Cannabis: When Is It Possible?

Ordinary termination due to cannabis consumption or cultivation is fundamentally only possible when there is a substantial and sustained breach of contract. Typical scenarios that can justify termination include: sustained odour nuisance that continues despite a formal warning, damage to the rented property from improper cultivation (e.g. mould damage from excessive humidity), endangerment of other residents (e.g. fire risk from defective electrical installation) and violation of security obligations towards minors.

Before termination, a formal warning (Abmahnung) must generally be issued first, specifically requesting that the tenant cease the complained-of behaviour. Only in particularly serious cases is termination without notice and without prior warning possible.

Illegal cultivation – meaning more than three flowering plants or commercial cultivation – can, by contrast, justify termination without notice due to criminal behaviour in the flat.

### House Rules and Common Areas

The house rules can prohibit cannabis consumption in common areas (stairwell, cellar, roof terrace, communal garden). This is legally unproblematic, as the KCanG only protects private consumption in one's own flat. Smoking in the flat with open windows, when smoke drifts into flats above or beside, can also be restricted through house rules – analogous to regulations for tobacco smoke.

## Part 2: Cannabis and Employment Law

### Basic Principle: Private Consumption Is None of the Employer's Business

A fundamental principle of German employment law states: the employee's private life is fundamentally none of the employer's business, as long as it does not impair work performance. Cannabis consumption during leisure time has been legal since the KCanG and therefore – unlike before legalization – cannot per se be deemed a breach of employment contract obligations.

However, this principle does not apply without limits. The employee owes the employer proper work performance. If cannabis consumption impairs the capacity to work – through residual intoxication, concentration deficits or absences – the employer can take employment law measures.

### Employer's Duty of Care

The employer has a comprehensive duty of care towards employees and third parties. They must ensure that their employees pose no danger – neither to themselves nor to colleagues, customers or the public. This duty of care has direct implications for dealing with cannabis at the workplace.

If an employer recognizes signs that an employee is under the influence of cannabis (e.g. reddened eyes, slowed reactions, cannabis odour, conspicuous behaviour), they must act. In safety-relevant areas – construction sites, production facilities, transport, healthcare – they can release the employee from work and send them home. The obligation to intervene in such cases arises from the Occupational Safety Act and the accident prevention regulations of the employers' liability insurance associations.

### Works Agreements and Employment Contracts

Employers can establish clear rules for dealing with cannabis through works agreements or employment contracts. Permissible provisions include: a prohibition of cannabis consumption during working hours and breaks, a prohibition of bringing cannabis onto company premises, the obligation to arrive at work fit for duty (no residual intoxication) and special regulations for safety-relevant activities.

The works council has a right of co-determination under § 87 para. 1 no. 1 BetrVG (works constitution) when introducing such regulations. Works agreements on dealing with cannabis should be clearly worded, name the consequences for violations and include support services for employees with addiction problems.

### Termination Due to Cannabis: Employment Law Perspective

Termination due to cannabis consumption is not automatically justified. The legal position is nuanced and depends on the circumstances of the individual case.

**Leisure consumption without effect on work:** No employment law consequences. The employer may derive neither a warning nor a termination from this.

**Leisure consumption with effect on work:** If the employee regularly appears at work with residual intoxication, their performance is persistently diminished or frequent absences occur, the employer can give a conduct-related termination after a prior warning.

**Consumption during working hours:** Violates the contractual obligation to perform work properly. A warning is generally required; for serious violations (e.g. consumption in safety-relevant areas), termination without notice may also be considered.

**Consumption in safety-relevant positions:** Those who work in positions where cannabis influence could endanger others (professional drivers, machine operators, doctors, pilots) are subject to stricter standards. Here, even a single instance of demonstrated impairment can justify termination without notice.

### Drug Testing at the Workplace: Legal Limits

Drug testing at the workplace is a sensitive topic where employer interests and employee personality rights collide.

**Random drug tests:** Routine drug tests without specific cause are fundamentally impermissible in Germany. They constitute a disproportionate interference with the employee's personality rights. Even a consent clause in the employment contract does not change this if the consent is not truly voluntary (which is regularly questionable in an employment relationship).

**Cause-related drug tests:** Where there is concrete suspicion of impaired work capacity, the employer may order a drug test – but only if this is proportionate. In safety-relevant areas, the threshold is lower than in office work. The employee can refuse a drug test; however, this may have employment law consequences if there was a legitimate reason.

**Pre-employment medical examinations:** A drug test may be required as part of the pre-employment medical examination if the position requires it (e.g. in safety-relevant areas). For general office work, a drug test at hiring is not justified.

**Occupational health examinations:** Occupational health screenings may include drug tests in certain professional fields – such as for professional drivers (G25 examination), driving and operating activities, or work involving fall hazards. The results are subject to medical confidentiality; the company doctor may only inform the employer whether the employee is fit for the activity – not the specific test results.

### Cannabis and Sick Leave

Cannabis consumption alone is not a reason for sick leave. However, if someone is incapacitated due to cannabis consumption – such as from residual intoxication or a cannabis use disorder – they are fundamentally entitled to continued pay during illness, as the incapacity is generally not self-inflicted. Self-inflicted incapacity leading to loss of continued pay is only assumed by case law in cases of grossly negligent or intentional behaviour – not for legal leisure consumption that unexpectedly leads to impairment.

### Accident Insurance and Cannabis

A delicate topic is insurance protection in the event of workplace accidents. In principle, employees are insured against workplace accidents through the statutory accident insurance (employers' liability insurance association). However, if a workplace accident occurs under the influence of cannabis, the insurance association may deny coverage if cannabis consumption was the legally sole material cause of the accident. The burden of proof lies with the insurance association.

In practice, this means: anyone who causes a workplace accident under THC influence must reckon with the possibility that the insurance association will review and potentially refuse cost coverage. This can have significant financial consequences, particularly for serious injuries with long-term effects.

### Civil Service Law: Special Obligations

Special rules apply to civil servants. Civil service law obliges them to uphold the reputation of their office and to conduct themselves in a manner that meets the public's trust in the administration. Cannabis is legal, but the question of whether cannabis consumption is compatible with civil service obligations is assessed differently.

In principle: legal leisure consumption in moderate amounts should be unproblematic for most civil service positions, provided capacity to serve is not impaired. For civil servants in safety-relevant positions (police, fire service, judiciary, armed forces), however, stricter standards apply. Some employers have issued decrees or service instructions regulating the handling of cannabis. Police officers in several federal states, for example, must ensure that no THC is detectable in their blood at the start of duty.

Particularly problematic is the handling of home cultivation. Although legal, civil servants who grow cannabis at home may find themselves in a difficult position in individual cases – for instance, if this becomes publicly known and could impair the reputation of their office.

### Soldiers and Cannabis

For soldiers of the Bundeswehr, a far-reaching prohibition applies. The Soldiers Act and the Central Service Regulation provide that soldiers may not consume cannabis during service and for an appropriate period before commencing service. In barracks, consumption is generally prohibited. Violations can be punished under disciplinary law and may lead to removal from the service relationship.

## Part 3: Practical Recommendations

### For Tenants

Proactively inform your landlord if you wish to grow – transparency prevents conflicts. Invest in a good activated carbon filter if you grow. Use a vaporizer instead of joints to minimize odour nuisance. Always store cannabis and plants securely from children. Document your security measures (photos, receipts for locks and filters). Respond to neighbours' complaints immediately and constructively.

### For Landlords

Update your lease agreements with clear, proportionate provisions on cannabis cultivation. Respond to complaints from other tenants promptly and document everything. Always issue a formal warning before termination – with a specific deadline. Seek conversation with the affected tenant before initiating legal steps. Obtain legal advice before terminating – the legal situation is complex and evolving.

### For Employees

Strictly separate consumption and work. Never arrive at work with residual intoxication. Inform yourself about your employer's works agreement or internal guidelines on drugs and intoxicants. Know your rights: you do not have to consent to a random drug test. Seek help early for addiction problems – company addiction counsellors, addiction counselling centres or your GP are confidential points of contact. Be careful with social media posts about cannabis if you work in a sensitive industry.

### For Employers

Create clear works agreements on dealing with cannabis – in cooperation with the works council. Train managers in recognizing impairment at the workplace. Offer support services for employees with addiction problems (Employee Assistance Programme). Distinguish between legal leisure consumption and workplace-related violations. Document incidents carefully – they can be decisive in the event of a dispute.