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?

The law does not prohibit denial of employment to those whose use of a lawful product consists of smoking tobacco and apply to become a firefighter.

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.

Process

How much time do I have to file a complaint?

If you experience discrimination because of your use or nonuse of lawful products, you may file a complaint with the Equal Rights Division within 300 days of the discriminatory action.

What will the Equal Rights Division do after I file a complaint?

The Equal Rights Division will investigate the complaint, help parties with settlement, if both parties express an interest, and order relief if discrimination is found after a formal hearing in front of an Administrative Law Judge. You can read more about the complaint process, settlement process, and early referral mediation program.

Where can I find more about the law?

Wisconsin Statutes Sections 111.31 - 111.395

Wisconsin Administrative Code Chapter DWD 218

Contact Us

If you need assistance in writing and filing a complaint, an Equal Rights Officer can help you. It is important to note that the Equal Rights Division does not provide legal advice or legal representation to either party in a case. You can find legal representation through the Attorney Referral List or by calling the State Bar Lawyer Referral number at (800) 362-9082.

Complaint Form

Employment Discrimination Complaint (Form ERD-4206) ( PDF | Word )

Queja de discriminación de empleo (Form ERD-4206-S) ( PDF | Word )

Resources

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