Instant dismissal due to cocaine use in your spare time: is that allowed?
Imagine this: you use cocaine over the weekend, then get tested positive at work and then refuse to attend a rehabilitation program. Can your employer then fire you on the spot? In a landmark 2007 ruling, the Supreme Court ruled on this issue in the case between a Hyatt Aruba employee and her employer.
This ruling is still relevant, especially as employers are increasingly committed to strict conduct and integrity policies, including outside of work hours.
The case: cocaine use and refusal of help
The employee in question had worked at the Hyatt hotel in Aruba as a casino beverage server since 1990. In 2002, she had attended mandatory Drug-Free Workplace Policy training and confirmed in writing that she knew a positive drug test could result in dismissal.
Yet in 2003 she tested positive for cocaine in a spot check. When a retest also gave the same result, she was given a choice: participate in a rehabilitation program, resign or be fired. She refused treatment and was subsequently summarily fired.
She went to court, arguing that her cocaine use had taken place privately and that her employer was not allowed to simply invade her personal privacy.
Intrusion into private life: where is the line?
The Supreme Court recognized that summary dismissal indirectly infringed on the employee's privacy. But more important was whether that intrusion was justified.
The verdict: yes, under circumstances it is allowed. According to the Supreme Court, in some cases, an employer may also take private behavior into account when assessing whether instant dismissal is justified. Especially if:
- the drug use was recent (e.g., in the 72 hours before the workday),
- the behavior leaves visible traces in the body (as in a urine test),
- the drug use poses risks to the operation or reputation of the company,
- and the employee refuses to use an offered alternative (such as counseling).
The employee had previously agreed to the policy, knew of the potential consequences, and her position was representative. That gave Hyatt sufficient reason to intervene.
Why this statement is important
This ruling confirms that employers may set limits on their employees' private behavior under certain conditions. This is especially true when:
- the employee is a role model;
- the behavior outside working hours may affect the safety or appearance of the company;
- and the policy is clearly communicated and carefully applied.
Employers may not arbitrarily infringe on employees' private lives, but if they have a legitimate interest as well as applying their policies proportionately and carefully, a drastic measure such as summary dismissal is legally tenable.
As an employee or employer, what can you learn from this?
It is important for employees to be aware of the personnel policies they sign. What you do in your free time is not always completely "private," especially if your work is affected by your behavior or if you are employed in a representative or sensitive position.
For employers, this ruling provides guidance in establishing and enforcing policies around drug use, integrity, or behavior outside of work hours. Examples include:
- Clear communication and training on policy,
- written record of agreement to rules of conduct,
- proportionate sanctions,
- and providing a recovery opportunity, such as an aid program.
Conclusion
With this ruling, the Supreme Court made it clear: behavior in your spare time can also lead to dismissal, provided the policy is clear, the behavior can be shown to have an impact on work, and a fair chance to recover has been offered.
This blog was written by mr. Stijn Blom, employment lawyer at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and supports entrepreneurs and employees on a daily basis with a variety of employment law issues. From dismissal cases to drafting watertight contracts and regulations - with his practical and personal approach, he helps employers and employees move forward. Want to know more? Visit Stijn's page.
Arbeidsadvocaat.nl is happy to think with you if you have questions about conduct rules. Please feel free to contact us .
April 2025
