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House Bill 2145/Senate Bill 47 - Permitting Employers to Discriminate Against Tobacco Users

Photo of Charlotte Hoffman Norris

Since 1992, West Virginia has prohibited employers, public and private, from discriminating against any job applicant or employee in the "compensation, terms, conditions and privileges of employment" based on that individual's use of "tobacco products off the premises of the employer during nonworking hours." W.Va. Code §21-3-19. In other words, under West Virginia Code §21-3-19, if the individual uses tobacco "off the clock" and "off premises," it is not the employer's business. (This is consistent with the purpose of Article 3 of Chapter 21 which pertains to the safety and welfare of workers.)

As in all things (or, at least most laws), there are exceptions. Some employers are permitted to discriminate; provided, that they are non-profit entities whose primary business purpose or objective is to discourage the use of tobacco products. It also is not a discriminatory practice, at least under §21-3-19, to offer different health, disability and/or life insurance coverage or premiums based upon tobacco use. Further, employers are permitted to make tobacco use cessation programs available to tobacco users in their workforces.

Two bills introduced on the first day of the 2017 Legislative Session-namely HB 2145 and SB 47-- seek to undo this tobacco discrimination prohibition:

HB 2145 seeks to repeal §21-3-19 in its entirety.

In contrast, SB 47 seeks to limit the protections of §21-3-19 to existing employees. Anyone "first employed on or after July 1, 2017" would not enjoy any protection.

Additionally, the employers permitted to discriminate, regardless of date of hire, based upon tobacco use would be expanded to include healthcare facilities and to "facilities that provide treatment to patients including patients with life threatening illnesses caused by or related to the use of one or more tobacco products, and any affiliated employer who principal business is directly related to that employer." (It is unclear how "healthcare facilities" and "facilities that provide treatment to patients" differ, as the terms are undefined.)The legislation is entirely silent regarding the use of "e-cigarettes."

It is unclear whether any discrimination based upon an employee's off-work tobacco use, nicotine addiction and/or related adverse health risks would pass muster with respect to federal laws prohibiting employee disability and benefit discrimination.

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