Generally speaking, workplace searches of employee lockers, bags and other searches would be subject to the same principles that apply to drug testing under the Supreme Court Irving Pulp ruling.
First, RANDOM searches are highly problematic and not allowed unless: 1. the workplace and workers searched are safety-sensitive; and 2. you can demonstrate that there’s an actual–not just theoretical–drug problem causing safety issues at the site, e.g., via records showing a large number of accidents and injuries caused by drug impaired workers at the site
FOR-CAUSE searches would be easier to justify. You’d still need a safety-sensitive workplace. Ideally, you’d limit searches to safety-sensitive personnel although it sounds like you might not be able to identify which employees the things you’re searching belong to. The for-cause policy also needs to set out triggers that are specific and compelling–I think the smell of pot would definitely qualify. You’d also need to implement the policy fairly and not abuse it by searching anyone and anything.
Last but not least, you’d need a clear policy that:
- Notifies employees of your right to conduct such searches;
- States that employees have limited privacy expectations with regard to those possessions at the workplace;
- Explains the reasons for the policy
Bottom line: Avoid random searches unless you’re sure you satisfy the above Irving conditions–recognizing that almost no employer ever does, at least based on the post-Irving cases. If you don’t believe me, just ask Suncor. They thought they had a solid case for random testing of oil sands workers at sites with over 1,500 drug-related safety incidents but the Alberta court still shot the policy down.
Hope that helps and feel free to follow up if u have any further Qs. Glenn
