Florida Comp Act’s Drug-Free Workplace Program Statute Provides no Private Right of Action

Unsuccessful Job Applicant Sought to Utilize Statute After Passing Drug Test, But Not Getting Job

§ 440.102, Fla. Stat., which establishes a drug-free workplace program as part of Florida’s overall worker’s compensation scheme, does not provide a private right of action to a job applicant who is required by a prospective employer to take a drug test without offering him employment, held the Eleventh Circuit Court of Appeals in McCullough v. Nesco Res. LLC, 2019 U.S. App. LEXIS 411 (11th Cir. Jan. 7, 2019). The Court stressed that the Florida legislature’s statement of intent included no language regarding employees’ rights and none would be inferred.


Florida employers that establish qualifying drug-free workplace programs pursuant to § 440.102, Fla. Stat., may qualify for discounts in the amounts owed for workers’ compensation insurance. To qualify for benefits under the program, an employer must implement certain drug-testing procedures, including job applicant drug testing. The statute defines “job applicant” as “a person who has applied for a position with an employer and has been offered employment conditioned upon successfully passing a drug test, and may have begun work pending the results of the drug test.”

Plaintiff, a 54 year-old black male, proceeding pro se, raised violations of Florida’s workers’ compensation, false advertising and civil rights laws, as well as breach of contract and intentional infliction of emotional distress. According to the Eleventh Circuit, plaintiff basically claimed that the defendant, a job placement agency, discriminated against him by not offering him employment after he submitted an application twice and passed drug testing defendant improperly required of him.

District Court Grants Judgment on Pleadings

The federal district court granted judgment on the pleadings to defendant. Plaintiff appealed, contending in pertinent part that the district court erred: (1) in holding that § 440.102, Fla. Stat. , lacked a private right of action; and (2) in granting defendant’s motion for judgment on the pleadings.

11th Circuit Affirms

The Eleventh Circuit affirmed, finding the statute provided no private right of action. The Court observed that the statute expressly did not abrogate the right of an employer under state law to conduct drug tests, or implement employee drug-testing programs. It was true that only those programs that met the criteria outlined in the statute qualified for reduced rates, but the Court also observed that at a different point, the statute indicated that no cause of action could arise in favor of any person based upon the failure of an employer to establish a program or policy for drug testing.

If the employer failed to comply with the requirements of the statute, the “penalty” was clear; it was disqualified from the insurance premiums discount. Reading the statute as a whole, the Eleventh Circuit concluded that the legislature did not intend to grant any private right of action. The Court added that even if the statute provided a private cause of action—which it did not—plaintiff had not alleged that the defendant participated in the drug-free workplace program or received benefits from it. The Eleventh Circuit also held the district court did not err in granting judgment on the pleadings concerning the plaintiff’s other causes of action.

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