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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 you as an employee, job applicant, or licensing applicant because of your membership in specific protected categories, including use or nonuse of lawful products.

Tobacco, alcohol, and lawfully obtained prescriptions for controlled substances for an existing 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 you became aware the action was taken.

What actions are covered?

When your 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 you if your 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 you use/do not use a lawful product off the employer's premises during nonworking hours 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 you.

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 you would be charged as an individual who uses that lawful product and an individual who does not use it reflects the actual cost of providing coverage to you,

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 you if you smoke.

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 you if you were using alcohol, off the employer's premises during nonworking hours, to the extent that it was having a negative effect on your 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

Online
Paper (to be mailed)