The omission of a private action remedy from the Idaho Private Employer Alcohol and Drug-Free Workplace Act bars a wrongful discharge suit based on the Act, a federal district court has concluded, refusing to imply a cause of action in the law in the face of statutory silence on the question. Observing that no Idaho court has addressed the issue, the federal court reasoned that if presented with the question, the state Supreme Court would reject the claim because compliance with the Act is “‘voluntary’ by its very terms,…promoting rather than mandating compliance.” Anderson v. Thompson Creek Mining Co., No. 4:11-CV-639-BLW (D. Id., May 2, 2013).
Following a positive drug test result leading to his termination, Anderson sued his employer claiming the testing procedures used by Thompson Creek Mining violated his rights under the Idaho Act. Examining the Act’s provisions, the court found the statute contained only voluntary provisions for the taking of samples and the testing itself. The statute, it said, sought to encourage employer compliance by offering for those who complied reduced unemployment insurance taxes (by presuming employees who tested positive in accordance with the law to have committed “misconduct” warranting a denial of benefits), affording protection from lawsuits (with some exceptions), saving them money on workers compensation insurance premiums and rendering employers eligible to contract for state construction projects.
The Idaho Act, however, did not by its terms authorize a private lawsuit for a violation. Neither could such a right of action be implied in the law, the court concluded, for “it neither proscribes non-compliance nor requires compliance,” a threshold requirement; it promotes rather than mandates compliance by offering employers substantial economic benefits. The court noted, moreover, that if the Idaho legislature had wanted to provide expressly for civil remedies, it would have been easy to do so, citing Oklahoma’s substance abuse testing law which does offer such remedies. “To read an implied right of Action into the Act would be to impose a mandatory duty on employers to comply with its terms. The Court refuses to rewrite the statute in that manner,” it held.
The court also refused to find a wrongful termination in violation of public policy as expressed in the Act. To do so, in light of its finding that no private cause of action could be based on the Act, “would be to ‘judicially admit at the back door that which has been legislatively turned away at the front door.'” The court granted judgment to the employer dismissing the action.
A number of states have enacted “drug-free workplace laws” to discourage substance abuse in employment. Many of them have analogous incentives for employers. They, too, are voluntary. Others, however, may be characterized as “mandatory,” since they seek to regulate workplace drug testing and afford employees a cause of action for their violation, even if they do not require employers to engage in substance abuse testing in the first place. What is less clear is whether, in the absence of express statutory civil lawsuit provisions, private sector substance abuse testing laws would imply a cause of action by employees or serve as a source of state public policy on which suit can be brought. This case’s reasoning may offer employers some comfort in that regard. But the laws must be examined closely in each instance to discern an employer’s rights and possible legal exposure.