39-2-313. Discrimination prohibited for use of lawful product during nonworking hours -- exceptions. (1) For purposes of this section, "lawful product" means a product that is legally consumed, used, or enjoyed and includes food, beverages, and tobacco.
     (2) Except as provided in subsections (3) and (4), an employer may not refuse to employ or license and may not discriminate against an individual with respect to compensation, promotion, or the terms, conditions, or privileges of employment because the individual legally uses a lawful product off the employer's premises during nonworking hours.
     (3) Subsection (2) does not apply to:
     (a) use of a lawful product that:
     (i) affects in any manner an individual's ability to perform job-related employment responsibilities or the safety of other employees; or
     (ii) conflicts with a bona fide occupational qualification that is reasonably related to the individual's employment;
     (b) an individual who, on a personal basis, has a professional service contract with an employer and the unique nature of the services provided authorizes the employer, as part of the service contract, to limit the use of certain products; or
     (c) an employer that is a nonprofit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public.
     (4) An employer does not violate this section if the employer takes action based on the belief that the employer's actions are permissible under an established substance abuse or alcohol program or policy, professional contract, or collective bargaining agreement.
     (5) An employer may offer, impose, or have in effect a health, disability, or life insurance policy that makes distinctions between employees for the type or price of coverage based on the employees' use of a product if:
     (a) differential rates assessed against employees reflect actuarially justified differences in providing employee benefits;
     (b) the employer provides an employee with written notice delineating the differential rates used by the employer's insurance carriers; and
     (c) the distinctions in the type or price of coverage are not used to expand, limit, or curtail the rights or liabilities of a party in a civil cause of action.

     History: En. Sec. 1, Ch. 193, L. 1993.