What is Not Use or Nonuse of Lawful Products Discrimination
The Wisconsin Fair Employment Act prohibits discrimination against applicants and employees for using or not using lawful products off the employer’s premises during non-working hours. In this sense, the word product or products was originally intended to mean only alcohol or tobacco, as opposed to any other product or service.
Lawfully obtained prescriptions for controlled substances for an individual’s existing current medical condition may also be considered a lawful product. However, for this to be the case, and in order to absolve an employee who tests positive for use of a controlled substance in the workplace, the employee must be under the care of a physician and possess a current medical prescription authorizing the use of a controlled substance.
How to Prove a Use or Nonuse of Lawful Products Discrimination Claim
It is not discrimination based on the use or nonuse of lawful products off the employer’s premises during non-working hours if:
- The employer is a nonprofit organization and the nonprofit prohibits an employee from using or requires an employee to use any product the nonprofit, as one of its primary purposes, discourages or encourages the general public from using;
- The use or nonuse of lawful products off the employer’s premises during nonworking hours:
- Impairs the employee’s ability to do his or her job duties or responsibilities
- Creates a conflict of interest, or the appearance of one, with the employee’s job duties or responsibilities
- Conflicts with a bona fide occupational qualification that is reasonably related to the employee’s job duties or responsibilities
- Conflicts with a federal or state law, rule, or regulation
- The employer refuses to hire a firefighter who smokes tobacco
- The employer provides different health, life, or disability insurance coverage to those employees based on their use or nonuse of lawful products
Use or Nonuse of Lawful Products Discrimination Claims
In order for an employee to bring a claim for discrimination based on the use or nonuse of lawful products off the employer’s premises during nonworking hours, the employee must show:
- He or she suffered an adverse employment action, such as termination, failure to promote, layoff, training, fringe benefits, pay or compensation, or any other term or condition of employment
- There was a causal connection between his or her use or nonuse of the lawful product off the employer’s premises during non-working hours and the adverse employment action. The employer then gets the opportunity to show that the use or nonuse of the lawful product off of its premises during non-working hours fell within one of the exceptions listed above
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