Employers need to be careful when disciplining employees for off-duty alcohol or tobacco use.  Under Minnesota’s lawful consumable products statute, it is generally unlawful for employers to discipline or terminate employees or refuse to hire applicants because the employee or applicant uses lawful consumable products, such as alcohol or tobacco, outside of the workplace and during nonworking hours, unless certain exceptions apply.
Minnesota’s lawful consumable products statute states that “[a]n employer may not refuse to hire a job applicant or discipline or discharge an employee because the applicant or employee engages in or has engaged in the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours.”  See Minn. Stat. § 181.938.  For purposes of the statute, the term “lawful consumable products” is defined as “products whose use or enjoyment is lawful and which are consumed during use or enjoyment, and includes food, alcoholic or nonalcoholic beverages, and tobacco.”
The statute includes several exceptions, which provide that it is not a violation of the statute for an employer to:

  • Restrict the use of lawful consumable products by employees during nonworking hours if the employer’s restriction either:  (1) relates to a bona fide occupational requirement and is reasonably related to the employment activities or responsibilities of the particular employee or group of employees; or (2) is necessary to avoid a conflict of interest or the appearance of a conflict of interest with any of the responsibilities owed by the employee to the employer;
  • Refuse to hire an applicant or discipline or discharge an employee who refuses or fails to comply with the conditions established by a chemical dependency treatment or aftercare program;
  • Offer, impose, or have in effect a health or life insurance plan that makes distinctions between employees for the type of coverage or the cost of coverage based upon the employee’s use of lawful consumable products, provided that, to the extent that different premium rates are charged to the employees, those rates must reflect the actual differential cost to the employer; or
  • Refuse to hire an applicant or discipline or discharge an employee on the basis of the applicant’s or employee’s past or present job performance.