North Carolina’s Lawful Use of Lawful Products Statute, N.C. Gen. Stat. Ann. § 95-28.2, prohibits employers from discriminating against employees for lawfully using lawful products during non-working hours.
The law was likely originally enacted to prevent employers from trying to forbid tobacco or alcohol use by employees outside of working hours. In light of the drug-testing practices common to many employers, the law may find a new significance should North Carolina legalize marijuana for medical or recreational use.
The law applies to all North Carolina employers with three or more regularly employed employees. N.C. Gen. Stat. Ann. § 95-28.2(a).
The statute protects employees and job applicants who engage in or have engaged in lawful use of lawful products if the activity:
- Occurs off the employer’s premises during non-working hours; and
- Does not adversely affect:
- the employee’s or prospective employee’s job performance or ability to fulfill the responsibilities of the position; or
- the safety of other employees.
N.C. Gen. Stat. Ann. § 95-28.2(b). For example, the law protects employees from discrimination for drinking legal tea in a lawful manner, provided that they do so outside of work hours and their use of the tea does not affect their job performance, ability to fulfill job responsibilities, or the safety of other employees.
The law provides that employers cannot, based on a protected “lawful use” activity:
- Fail or refuse to hire a prospective employee;
- Discharge an employee; or
- Otherwise discriminate against any employee regarding compensation, terms, conditions, or privileges of employment.
N.C. Gen. Stat. Ann. § 95-28.2(b). The law does provide that employers may discriminate between employees based on the use or nonuse of lawful products with respect to the price or type of coverage offered for health, disability, or life insurance. N.C. Gen. Stat. Ann. § 95-28.2(d).
The law provides that it is not a violation for employers to do any of the following:
- Restrict the lawful use of lawful products by employees during nonworking hours if the restriction relates to a bona fide occupational requirement and is reasonably related to the employment activities. But if the restriction reasonably relates to only a particular employee or group of employees, then the restriction may only lawfully apply to them.
- Restrict the lawful use of lawful products by employees during nonworking hours if the restriction relates to the fundamental objectives of the organization.
- Discharge, discipline, or take any action against an employee because of the employee’s failure to comply with the requirements of the employer’s substance abuse prevention program or the recommendations of substance abuse prevention counselors employed or retained by the employer.
Civil Actions and Remedies
The law provides that an employee who is discharged or otherwise discriminated against, or a prospective employee who is denied employment in violation of the law’s provisions, may bring a civil action against the violating employer and obtain any of the following:
- Any wages or benefits lost as a result of the violation;
- An order of reinstatement without loss of position, seniority, or benefits; or
- An order directing the employer to offer employment to the prospective employee.
N.C. Gen. Stat. Ann. § 95-28.2(e). The law further provides that the court may award reasonable costs, including court costs and attorneys’ fees, to the prevailing party. N.C. Gen. Stat. Ann. § 95-28.2(f).
This article was originally published on TimCoffieldAttorney.net.
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