Wisconsin Prohibits Discrimination Against Employees for the Use or Non-Use of Lawful Products

February 1, 2007

Employment Law of the Month

In Wisconsin, employers are prohibited from discriminating against any individual on the basis of, among other things, “use or non-use of lawful products off the employer’s premises during nonworking hours.” Through this provision, employers are prohibited from taking any adverse action against an employee who smokes, uses alcohol, or consumes other products that are not unlawful. With the escalation of health insurance premiums for employees who smoke, this prohibition indirectly prohibits employers from terminating employees whose lawful use of tobacco products invites significant health risks, and corresponding costs.

There are exceptions to this general prohibition against discrimination. For example, it is not discrimination for a non-profit corporation that discourages the general public from using a lawful product as one of its “primary purposes of objectives” to discriminate against an employee that uses that lawful product during non-working hours. In addition, it is lawful for an employer to discriminate against an employee for his or her use or non-use of a lawful product off the employer’s premises during non-working hours if the use of that product impairs the individual’s ability to perform his or her job-related responsibilities or if the use creates a conflict of interest, or the appearance of a conflict of interest with his or her job-related responsibilities. There is also an exemption for individuals whose use or non-use of lawful products conflicts with the bonafide occupational qualifications that are reasonably related to that person’s job-related responsibilities. And, of course, it is permissible to prohibit firemen from smoking.

This prohibition against discrimination does not prohibit employers from charging higher insurance premiums to employees who use lawful products off-site. As long as there is a written statement specifying the premium rate differential and the differential itself is based on an actual cost difference, the employer is free to pass on the cost of a higher premium to an employee who smokes or uses alcohol.

With today’s spiraling health costs, employers should pay careful attention to this regulation and make sure that specific policies are in place to prevent discrimination against those who use lawful products during non-working hours while away from their place of employment.

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