How far can an employer search if it suspects drug use or possession?
Question: Is it legal to search an employee’s personal property, including lockers, purses or desks, for drugs or alcohol while on company property? Is it different if we have evidence or witnesses that they are in possession of drugs or alcohol?
Answer: Employees have some expectation of privacy in the workplace. In Monarch Fine Foods Co. v. Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees, Local 647, it was determined “persons do not by virtue of their status as employees lose their right to privacy and integrity of the person.”
In assessing whether a search of an employee’s personal property is justified, courts and arbitrators analyze whether the invasion of the employee’s privacy is a reasonable and justifiable interference with her right of privacy or property.
Appropriate posted notice of a policy to search lockers or desks is typically sufficient as these are considered company property. Purses are more personal and would require reasonable and probable grounds before a search is instigated — more than a mere suspicion.
There is no fixed list of factors that constitute reasonable or probable grounds to suspect an employee of concealing drugs or alcohol at work. In Canadian National Railway v. CAW-Canada, an arbitrator found an employer’s policy of conducting a search if it had evidence of “the presence of drug paraphernalia, reported, visible or olfactory evidence of drugs” was reasonable.
Certainly, if management saw an employee use drugs or alcohol, found evidence of drug or alcohol paraphernalia in the workplace, or another employee reported the use of drugs or alcohol, a search could be justified. In all circumstances, the employer should consider other means to secure further evidence before initiating a search.
In National Gypsum (Canada) Limited and I.U.O.E., Locals 721 and 721B, management suspected an employee, who was a heavy machine operator, was under the influence of marijuana when a colleague reported smelling it on him. Other than some nervousness around his boss, there were no outward signs of intoxication, but the employee was asked to take a blood test. The arbitrator found without corresponding signs of intoxication in the employee’s behaviour, management had to make further inquires, such as speaking to him, before taking more invasive measures.
Employers in safety-sensitive industries can justify a search where they have reason to believe the safety of their worksite is in jeopardy. Employees who perform tasks while impaired jeopardize the safety of employers, employees and themselves. Searches might also be reasonable where they are aimed at ensuring the safety of products.
An employer should have a drug and alcohol policy in place that addresses the circumstances under which management will conduct a search of personal property. The policy should state clearly that law enforcement may become involved if the employer is made aware of illegal drug possession, use or dealing. Employees should be made aware of such policies, as well as consequences for breaching them.
For more information see:
•Monarch Fine Foods Co. v. Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees, Local 647, 1978 CarswellOnt 931 (Ont. Arb. Bd.).
•Canadian National Railway v. CAW-Canada, 2000 CarswellNat 2285 (Can. Arb. Bd.).
•National Gypsum (Canada) Ltd. v. I.U.O.E., Locals 721 & 721B, 1997 CarswellNS 554 (N.S. Arb. Bd.).
