Use or Nonuse of Lawful Products

Overview

The Wisconsin Fair Employment Act prohibits employers, employment agencies, labor unions, licensing agencies, and other persons from discriminating against employees, job applicants, or licensing applicants because of their membership in specific protected categories, including use or nonuse of lawful products.

Tobacco, alcohol, and lawfully obtained prescriptions for controlled substances for an individual’s existing current medical condition are examples of lawful products.

To be protected under the law, the use or nonuse of the lawful product must be off the employer’s premises and during nonworking hours.

The statute of limitations for filing a complaint is 300 days from the date the action was taken or the individual was made aware the action was taken.

What actions are covered?

When an individual's use or nonuse of lawful products motivates the decision related to an employment action or licensing action, it becomes unlawful discrimination.

Specifically, the law prohibits discrimination in recruitment and hiring, job assignments, pay, leave or benefits, promotion, licensing or union membership, training, layoff and firing, harassment and other employment related actions.

Are there any exceptions to discrimination based on use of nonuse of lawful products?

Yes. The law does not prohibit an employment action or licensing action against an individual if the individual’s use or nonuse of lawful product off the employer’s premises during nonworking hours does any one of the following:

  • Impairs the ability to undertake adequately the job-related responsibilities
  • Creates a conflict of interest or an appearance of a conflict of interest with the job-related responsibilities
  • Conflicts with a bona fide occupational qualification that is reasonably related to the job-related responsibilities
  • Conflicts with any federal or state statute, rule, or regulation
  • Violates Wisconsin Statutes Section 254.92(2) that prohibits individuals under 18 years of age from purchasing, attempting to purchase, or possessing any cigarette, nicotine product, or tobacco product.

Are there any exceptions that specifically apply to non-profit corporations?

Yes. If an applicant or an employee uses/does not use off the employer’s premises during nonworking hours a lawful product that the nonprofit corporation discourages/encourages the general public from using, the nonprofit corporation does not violate the law by taking an employment action or licensing action against that applicant or employee.

Can I be asked to pay more for life, health, or disability insurance coverage because of my use or nonuse of lawful products, such as cigarettes or alcohol, off the employer’s premises during nonworking hours?

Yes, only if it:

  • Reflects actual difference in cost - The difference between the premium rates charged to the individual who uses and the individual who does not use reflects the actual cost of providing the coverage to the individual who uses that lawful product,

AND

  • Is in writing - Each individual who is charged a different premium rate based on the use or nonuse of a lawful product off the employer’s premises during nonworking hours is provided with a written statement specifying the premium rate differential used by the insurance carrier.

I was not hired to be a firefighter because I am a smoker. Is that lawful?

Yes, The statute allows fire departments to refuse to hire or employ an individual who smokes.

I did not consume alcohol on duty. If I refuse to undergo an alcohol assessment, can I be fired?

The law does not prohibit an employment action against an individual if the individual was using alcohol, off the employer's premises during nonworking hours, to the extent that it was having a negative effect on the ability to perform job-related responsibilities. Further, refusing to undergo an alcohol assessment provides the employer a legitimate, non-discriminatory reason to fire you.

For More Information

Email DWD DWD Instragram DWD on Twitter DWD on Facebook DWD on YouTube DWD on LinkedIn DWD RSS Feed

A proud partner of the network