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WV Tobacco Use Discrimination: What Employers Need to Know

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Employers in the Mountain State need to know that West Virginia (WV) law prohibits discrimination against employees who use tobacco products while not at work. Commonly known as a "smoker protection law," the WV tobacco use discrimination law places significant restrictions on actions employers may take due to off-duty tobacco use.

Background on WV Tobacco Use Discrimination

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 an 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.)

WV Tobacco Use Discrimination: When Is It Permitted under Current Law?

As in all things (or, at least most laws), there are exceptions. Non-profit entity employers whose primary business purpose or objective is to discourage the use of tobacco products have an explicit exception under the law. 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.

Attempts to Repeal the WV Tobacco Discrimination Law

Two bills introduced on the first day of the 2017 Legislative Session-namely HB 2145 and SB 47-sought to undo this tobacco discrimination prohibition. HB 2145 sought to repeal § 21-3-19 in its entirety. This bill was referred to the House Health and Human Resources Committee on the day it was introduced. No further action was taken.

In contrast, SB 47 sought to limit the protections of § 21-3-19 to the off-duty use of tobacco by existing employees. Anyone "first employed on or after July 1, 2017" would not have enjoyed any protection. This bill was introduced on February 8, 2017, when it was referred to the Senate Health and Human Resources Committee. No additional action was taken.

Additionally, the employers permitted to discriminate, regardless of date of hire, based upon tobacco use would have been expanded to include healthcare facilities and "facilities that provide[d] 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 [wa]s directly related to that employer." (Under the Senate's version of the bill, it was unclear how "healthcare facilities" and "facilities that provide[d] treatment to patients" differed, as the terms were undefined.) In addition, the draft legislation was entirely silent regarding the use of e-cigarettes.

Since both measures failed, WV employers must continue to abide by existing law. This means that they may not discriminate against employees who use tobacco products outside the workplace other than the exceptions outlined in the statute.

Potential Problems with Discrimination Based on Off-Duty Tobacco Use

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. These are difficult issues that should be handled only with the assistance of experienced legal counsel.

When you have questions about employee rights in West Virginia (WV), Kentucky (KY), or Ohio (OH), contact the experienced labor and employment lawyers at Jenkins Fenstermaker: 866.617.4736. We've dedicated our careers to helping employers navigate the ever-changing legal landscape in this area, and we stay abreast of changes that affect that may affect your business, including those that potentially impact WV tobacco use discrimination laws.

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