Be More Careful Not Reason for Drug Testing
SaskEnergy learned a costly lesson about workplace drug testing after a pair of gas line strikes. The company argued that testing workers after accidents would serve as a deterrent, but the courts rejected that reasoning, awarding compensation to five employees.
Human error versus impairment
SaskEnergy faced two gas line strikes within three years. In 2019, a crew near Moose Jaw trenched into a pipe after location markers proved unreliable.
The following year, a backhoe operator near White Bear First Nation caught a line that had drifted 18 inches from its designated position because the tracer wire had come loose.
No one was injured, and all five workers involved tested negative for drugs or alcohol. The aim was to make them more aware of safety rules.
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The arbitrator disagreed with that approach. He noted that workers make mistakes, sometimes serious ones, without impairment ever entering into it.
The question was never whether the incidents were significant, but whether anything about them pointed toward drugs or alcohol. The court found that a test administered for deterrence is not a workplace safety measure. It is a punishment dressed up as a precaution.
It is easy to see why an employer might reach for testing after an accident. It looks like due diligence, it produces a document, and it signals that safety is being taken seriously to a regulator, an insurer, or a plaintiff’s lawyer.
However, the law does not permit this leap from “this should not have happened” to “therefore we should test.”
Legal limits on testing authority
Employers often assume that a significant incident automatically triggers the right to test. The court made it clear that a drug and alcohol policy is not a blank cheque.
It requires something more than just an accident. There must be some fact, however modest, that points toward substance use as a possible cause, not merely the reasoning is that the outcome.
SaskEnergy’s attempt to appeal the ruling further complicated its position. The company filed an affidavit from an employee who attended the arbitration hearing.
The court found the document unimpressive. It was assembled seven and a half months after the hearing by someone with an obvious stake in the outcome, and it covered only the parts of the testimony that supported the company’s case.
The court described a similar attempt at reconstruction as “an obvious, impermissible attempt by the Employer to backfill its position on judicial review by colouring and highlighting selective testimony.”
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