§ 95-28.2. Discrimination against persons for lawful use of lawful products during nonworking hours prohibited.
§95‑28.2. Discrimination against persons for lawful use of lawfulproducts during nonworking hours prohibited.
(a) As used in thissection, "employer" means the State and all political subdivisions ofthe State, public and quasi‑public corporations, boards, bureaus,commissions, councils, and private employers with three or more regularlyemployed employees.
(b) It is an unlawfulemployment practice for an employer to fail or refuse to hire a prospectiveemployee, or discharge or otherwise discriminate against any employee withrespect to compensation, terms, conditions, or privileges of employment becausethe prospective employee or the employee engages in or has engaged in thelawful use of lawful products if the activity occurs off the premises of the employerduring nonworking hours and does not adversely affect the employee's jobperformance or the person's ability to properly fulfill the responsibilities ofthe position in question or the safety of other employees.
(c) It is not aviolation of this section for an employer to do any of the following:
(1) Restrict the lawfuluse of lawful products by employees during nonworking hours if the restrictionrelates to a bona fide occupational requirement and is reasonably related tothe employment activities. If the restriction reasonably relates to only aparticular employee or group of employees, then the restriction may onlylawfully apply to them.
(2) Restrict the lawfuluse of lawful products by employees during nonworking hours if the restrictionrelates to the fundamental objectives of the organization.
(3) Discharge,discipline, or take any action against an employee because of the employee'sfailure to comply with the requirements of the employer's substance abuseprevention program or the recommendations of substance abuse preventioncounselors employed or retained by the employer.
(d) This section shallnot prohibit an employer from offering, imposing, or having in effect a health,disability, or life insurance policy distinguishing between employees for thetype or price of coverage based on the use or nonuse of lawful products if eachof the following is met:
(1) Differential ratesassessed employees reflect actuarially justified differences in the provisionof employee benefits.
(2) The employer provideswritten notice to employees setting forth the differential rates imposed byinsurance carriers.
(3) The employercontributes an equal amount to the insurance carrier on behalf of each employeeof the employer.
(e) An employee who isdischarged or otherwise discriminated against, or a prospective employee who isdenied employment in violation of this section, may bring a civil action withinone year from the date of the alleged violation against the employer whoviolates the provisions of subsection (b) of this section and obtain any of thefollowing:
(1) Any wages orbenefits lost as a result of the violation;
(2) An order ofreinstatement without loss of position, seniority, or benefits; or
(3) An order directingthe employer to offer employment to the prospective employee.
(f) The court mayaward reasonable costs, including court costs and attorneys' fees, to theprevailing party in an action brought pursuant to this section. (1991(Reg. Sess., 1992), c. 1023, s. 1.)