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130 USE OR NON-USE OF LAWFUL PRODUCTS

The Complainant’s claim of discrimination because of use or non-use of a lawful product off the employer’s premises during non-working hours related to a counseling session which she had with a mental health counselor. The prohibition against discrimination on the basis of use or non-use of a lawful product was intended to provide protections for the use or non-use of products such as tobacco or alcohol. A counseling session with a mental health counselor is not a “product.” It is a service. Hoyer v. Calumet Med. Ctr. (LIRC, 05/07/10).

A Complainant and a Respondent would have the following respective burdens of proof in a case of alleged discrimination based on the use of a lawful product off the employer’s premises during non-working hours. First, the Complainant would be required to show that: (1) he used a lawful product off the employer’s premises during non-working hours; (2) he suffered an adverse employment action; and (3) there was a causal connection between the Complainant’s use of the lawful product off the employer’s premises during non-working hours and the adverse employment action. Second, if the Complainant met this burden, the burden would then shift to the Respondent to establish that the adverse action taken due to the Complainant’s use of a lawful product off the employer’s premises during non-working hours was not an act of employment discrimination because the Complainant’s use of the lawful product off the employer’s premises during non-working hours resulted in any of the conditions listed in sec. 111.35(2)(a)-(e), Stats. Miller v. Menard, Inc. (LIRC, 08/31/06).

Lawfully obtained prescriptions for controlled substances for an individual’s existing current medical condition are lawful products under the Wisconsin Fair Employment Act. Miller v. Menard, Inc. (LIRC, 08/31/06).

The Complainant in this case failed to establish that he used a lawful product off the employer’s premises. The Complainant, who had back pain, used one pill of Tylenol-3 with codeine, a controlled substance, which had been prescribed for him four years earlier for a different medical condition. Sec. 961.38(1r), Stats., provides that “no controlled substance included in schedule II may be dispensed without the written prescription of a practitioner.” Sec. 961.38(3), Stats., provides that “a controlled substance included in schedule III or IV which is a prescription drug, shall not be dispensed without a written, oral or electronic prescription of a practitioner.” The Complainant did not show that he was dispensed a controlled substance for his current back condition pursuant to a written, oral or electronic prescription of a practitioner. His use of the medication was, therefore, not the use of a lawful product. Miller v. Menard, Inc. (LIRC, 08/31/06).

There is no basis for interpreting the “use of lawful product” provision in the Wisconsin Fair Employment Act as affording protection against employer action taken against an individual who: (1) is not under the care of a physician, (2) does not possess a current medical prescription authorizing the use of a controlled substance, and (3) who tests positive for use of a controlled substance in violation of the employer’s Drug-Free Workplace Policy. Miller v. Menard, Inc. (LIRC, 08/31/06).

A Respondent had reason to believe that an employee was using alcohol to the extent that it was having a negative effect on her ability to perform her job. The employer had a legitimate interest in determining whether or not she was capable of discharging her duties as the administrator of its nursing home. The employee was discharged when she refused to undergo an assessment for alcohol abuse. The Complainant’s employment was not terminated because of use or non-use of a lawful product off the employer’s premises during non-working hours. Dable v. Petersen Health Care (LIRC, 07/30/97).

The Complainant’s claim that the Respondent violated the Wisconsin Fair Employment Act’s prohibition against discrimination on the basis of “use or non-use of lawful products off the employer’s premises” was properly dismissed where the Complainant was a self-employed person. The Complainant would have had to have been an employee of an employer who would fire or not hire him based on his use of a lawful product, such as cigarettes. In this case, the Complainant merely alleged that the Respondent would not let him service its fire extinguishing systems because he was not a factory-authorized service representative. Hellerude v. LIRC (La Crosse Co. Cir. Ct., 09/23/96).