Immediate termination for cocaine use during your free time: Is that allowed?

Imagine this: you use cocaine over the weekend, then test positive at work, and subsequently refuse to participate in a rehabilitation program. Can your employer then terminate you immediately? In a notable 2007 ruling, the Supreme Court ruled on this issue in the case between an employee of Hyatt Aruba and her employer.

This ruling remains relevant, especially now that employers are increasingly adopting strict conduct and integrity policies, even outside of working hours.

The Case: Cocaine Use and Refusal of Treatment

The employee in question had been working at the Hyatt hotel in Aruba as a casino beverage server since 1990. In 2002, she had completed mandatory “Drug-Free Workplace Policy” training and confirmed in writing that she was aware that a positive drug test could result in termination.

Nevertheless, she tested positive for cocaine during a random drug test in 2003. When a retest yielded the same result, she was given a choice: participate in a rehabilitation program, resign, or be fired. She refused treatment and was subsequently fired on the spot.

She took the matter to court, arguing that her cocaine use had taken place in private and that her employer could not simply intrude on her personal life.

Invasion of Privacy: Where Is the Line?

The Supreme Court acknowledged that summary dismissal indirectly constitutes an infringement of the employee’s right to privacy. But the more important question was whether that infringement was justified.

The ruling: Yes, under certain circumstances, this is permitted. According to the Supreme Court, an employer may, in some cases, also take private conduct into account when assessing whether summary dismissal is justified. This is certainly the case if:

drug use had occurred recently (for example, within 72 hours before the workday),
the behavior leaves visible traces in the body (such as in a urine test),
drug use poses risks to the company’s operations or reputation,
and the employee refuses to take advantage of an offered alternative (such as counseling).

The employee had previously agreed to the policy, was aware of the possible consequences, and held a position that required her to represent the company. That gave Hyatt sufficient reason to take action.

Why This Ruling Is Important

This ruling confirms that employers may, under certain conditions, set limits on their employees’ private conduct. This applies in particular when:

the employee serves as a role model;
behavior outside of working hours may affect the company’s safety or reputation;
and the policy has been clearly communicated and is being carefully implemented.

Employers may not arbitrarily infringe on employees’ privacy; however, if they have a legitimate interest and apply their policies in a proportionate and careful manner, a drastic measure such as immediate dismissal is legally justifiable.

What can you learn from this as an employee or employer?

It is important for employees to be aware of the employment policy they are signing. What you do in your free time is not always entirely “private,” especially if your work is affected by your behavior or if you hold a position that requires you to represent the company or involves sensitive responsibilities.

For employers, this ruling provides guidance on drafting and enforcing policies regarding drug use, integrity, or conduct outside of work hours. Examples include:

clear communication and training on policies,
written confirmation of agreement to the rules of conduct,
proportional sanctions,
and offering a path to recovery, such as a support program.

Conclusion

With this ruling, the Supreme Court made it clear that behavior during one’s free time can also lead to termination, provided that the policy is clear, the behavior can demonstrably affect work, and a fair opportunity to remedy the situation has been offered.

This blog was written by Stijn Blom, Esq., an employment law attorney at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and assists employers and employees on a daily basis with a wide range of employment law issues. From dismissal cases to drafting watertight contracts and policies—with his practical and personalized approach, he helps employers and employees move forward. Want to learn more? Visit Stijn’s page.

Arbeidsadvocaat.nl is happy to assist you if you have any questions about codes of conduct. Please feel free to contact us .

April 2025