In this series, we will explore some of the ways states vary from one another in their employment laws.

Employers have cited several reasons why they might wish to prohibit certain employee off-duty activities. Some employers seek to prohibit off-duty use of tobacco, for example, to reduce health-related worker absences, to lower employee health insurance costs, and to build a stronger public image associated with a healthy lifestyle. However, several states have explicit employee protections that prevent employers from regulating off-duty activities.

Connecticut, the District of Columbia, Indiana, Kentucky, Louisiana, Maine, Mississippi, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, and West Virginia all have laws that explicitly prohibit an employer from discriminating against an employee based on their off-duty tobacco use and/or requiring that employees refrain from using tobacco while off duty.

Some states take this protection even further. Illinois, Minnesota, Missouri, Montana, Nevada, North Carolina, Tennessee, and Wisconsin protect employees’ off-duty right to consume tobacco, but also apply those protections to the consumption of other lawful products. Minnesota law, for example, specifically protects most employees’ right to use marijuana off employer premises and outside of work hours (although Minnesota law explicitly states that employers may terminate or discipline employees if they use, possess, sell, or are under the influence of marijuana at work).

California, Colorado, New York, and North Dakota go further still. Their laws protect not only off-duty use of products, but also off-duty activities. A Colorado employee, for example, may engage in any lawful activity off their employer’s premises during non-working hours unless that activity causes an actual or apparent conflict of interest with the employer. A New York employee is protected from discrimination based on lawful, off-duty, off-premises marijuana and other product use, political activity, and recreational activity.