North Carolina’s Lawful Use of Lawful Products Law
Q: How does the NC Lawful Use of Lawful Products Law affect my employee’s rights when working?
A: North Carolina’s lawful use of lawful products law (N.C.G.S. §95-28.2) prohibits discrimination against an applicant or employee because they lawfully use a lawful product away from work. In other words, the statute protects employees from being punished for their legal, off-duty activities, if those activities do not negatively affect their job performance or the workplace.
For example, an employer may prohibit tobacco smoking at work but may not discharge or refuse to hire an individual who smokes away from work. It is illegal for an employer to discriminate against an employee for the employee’s lawful use of lawful products, such as tobacco, during non-working hours. However, it is up to the employer to set its own rules for its employees during working hours concerning breaks and if they can smoke in or on its premises during the workday.
Even for legal substances such as tobacco and alcohol, employers may consider the adverse effects of such on job performance, safety, and company objectives.
Another example where this law may come into play is with marijuana use. As of now, marijuana use in NC is not legal, medically or recreationally. However, as in many states, there continue to be bills brought forth to pass laws allowing marijuana for medicinal purposes. As of now, employers have the right to prohibit marijuana use through policies and practices within NC whether that conduct occurs off duty or employees report to work under the influence. Employees who engage in illegal activities, even if they occur off-duty, are not protected.
If you have additional questions, please contact Catapult’s HR Advice Team at 866-440-0302 or advice@letscatapult.org.
Frequently Asked Questions
What does North Carolina’s Lawful Use of Lawful Products law protect?
NC General Statute 95-28.2 prohibits employers from refusing to hire or discharging an employee because they use a lawful product outside the workplace during non-working hours. This includes tobacco products. The law does not protect use that conflicts with a bona fide occupational requirement or where federal law restricts it (such as for safety-sensitive federal contractor positions).
Does North Carolina’s lawful products law protect marijuana use?
Not currently. Since marijuana remains illegal under federal law and is not legal for recreational use under North Carolina state law, it does not qualify as a “lawful product” under the NC statute. Employers in North Carolina may still drug-test for and take adverse action based on marijuana use, including off-duty use.
Can a North Carolina employer refuse to hire a smoker?
The NC lawful products law restricts this. Employers generally cannot refuse to hire applicants solely because they use tobacco products during non-work time. However, bona fide occupational requirements related to health or safety may justify a tobacco-free policy in specific roles. Wellness program incentives that differ based on tobacco use are separately governed by ACA rules.
Does South Carolina have a similar lawful use of lawful products law?
South Carolina does not have a comparable state statute protecting employee off-duty use of lawful products. SC employers have more discretion in setting off-duty conduct policies, subject to federal law and any relevant contractual obligations.
What off-duty conduct can North Carolina employers legitimately restrict?
NC employers can restrict off-duty conduct that creates a conflict of interest (working for a competitor), violates a contractual obligation, constitutes illegal activity, involves use of products in violation of federal law, or conflicts with a bona fide occupational requirement. Policies should be narrowly tailored and consistently applied.
