Can an Illinois non-profit hospital refuse to hire someone because that person uses tobacco off the job?

Plain-English summary

State Senator David Luechtefeld asked the AG whether a non-profit hospital could base its hiring decisions on whether an applicant uses tobacco off the job. This opinion interpreted Illinois's "lawful products" employment statute: section 5(a) of the Right to Privacy in the Workplace Act bars employers from refusing to hire, firing, or otherwise penalizing employees because they use a "lawful product" (defined by rule to include tobacco, alcohol, food, over-the-counter medications, and prescriptions) off the employer's premises during nonworking hours.

Section 5(b), however, carves out a non-profit organization that "as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public." In the 1991 House debate, Representative Pullen raised concerns about whether organizations such as the Cancer Society and Lung Association would have to hire smokers.

Attorney General Lisa Madigan's answer was that whether a particular hospital qualified for the section 5(b) exemption was a fact question. If the hospital was a non-profit whose primary purposes included discouraging tobacco use by the general public, the exemption applied and the hospital could decline to hire tobacco users. The AG could not adjudicate that fact question in an opinion.

The opinion noted that the Right to Privacy in the Workplace Act and its rules do not define "non-profit organization," although other Illinois statutes do. It applied the ordinary meaning of the term, including whether an organization is "not conducted or maintained for the purpose of making a profit." A footnote also described a 2012 bill (Senate Bill 2945) that proposed an exemption for certain for-profit cancer-treatment providers; the Governor vetoed it and the Senate failed to override the veto.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What did the Right to Privacy in the Workplace Act actually prohibit?
A: At the time of this opinion, section 5(a) made it "unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours." The administrative-rule definition of "lawful products" included tobacco, alcohol, food, over-the-counter drugs, and prescriptions written for the employee.

Q: How was the section 5(b) non-profit exemption phrased?
A: "This Section does not apply to any employer that is a non-profit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public." The exemption also covered cases where use of a lawful product impairs the employee's ability to perform job duties (a separate exception, not directly at issue in this opinion).

Q: How did the AG read "primary purposes or objectives"?
A: The opinion drew on Central Illinois Light Co. v. Department of Revenue, which defined "primary" as "original," "fundamental," and "basic." Incidental anti-tobacco messaging by an organization with a different core mission would not satisfy the exemption. The legislative history pointed in the same direction: Representative Pullen raised concerns about the Cancer Society and the Lung Association being required to hire smokers.

Q: Did the AG adopt a particular definition of "non-profit organization"?
A: No. The AG observed that the Right to Privacy in the Workplace Act and its administrative rules do not define the term. Other Illinois statutes do; for example, the Insurance Code at 215 ILCS 5/123D-5 uses the federal § 501(c)(3) definition. The AG applied the ordinary-meaning canon and concluded that "non-profit organization" in section 5(b) means an entity "not conducted or maintained for the purpose of making a profit." The AG treated that ordinary meaning as the relevant definition for this opinion.

Q: Did the AG decide whether a particular hospital qualified?
A: No. Whether a particular non-profit hospital had discouraging tobacco use by the general public as one of its primary purposes was a factual question the AG said could not be resolved in a legal opinion.

Background and statutory framework

Subsection 5(b) of the Right to Privacy in the Workplace Act was added by Senate Amendment No. 1 to House Bill 1533, enacted as Public Act 87-807, effective July 1, 1992. Subsection 5(a) generally prohibits employment decisions based on lawful-product use away from work during nonworking hours. Subsection 5(b) excludes qualifying non-profit organizations from that prohibition and also addresses use that impairs an employee's ability to perform assigned duties.

The administrative rules at 56 Ill. Adm. Code § 360.110 supply definitions: "lawful products" includes tobacco, alcohol, food, over-the-counter medications, and physician-prescribed drugs. "Employer" includes any individual, partnership, association, corporation, or business that has a person performing work for compensation. Hospitals that have employees fall squarely within the "employer" definition.

The legislative debate on House Bill 1533 (the original vehicle for the Act) addressed the non-profit exemption directly. Representative Pullen's floor remarks expressed concern that the American Heart Association, the Cancer Society, and the Lung Association would be required to hire smokers. The 1991 debate also raised alcoholism-treatment organizations as a parallel example. The eventual statutory text, "as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public," tracks that legislative concern.

The 2012 Senate Bill 2945 would have extended the exemption to a narrow class of for-profit medical providers, specifically those whose "sole business purpose or objective" is treating cancer patients. The Governor vetoed the bill and the Senate failed to override the veto by the constitutional three-fifths supermajority required by article IV, section 9(c) of the Illinois Constitution. The opinion noted the failed legislative effort but did not rest its analysis on it.

Citations and references

Statutes and regulations (as cited in the opinion):

• 820 ILCS 55/5(a), (b)
• 820 ILCS 55/10, 55/12
• 215 ILCS 5/123D-5
• 20 ILCS 661/10
• 56 Ill. Adm. Code § 360.110(d), (g)
• Ill. Const. 1970, art. IV, § 9(c)
• Public Act 87-807, effective July 1, 1992
• Senate Bill 2945, 97th Ill. Gen. Assem. (vetoed)

Cases:

• People v. Marshall, 242 Ill. 2d 285 (2011)
• Board of Education of Auburn Community Unit School District No. 10 v. Department of Revenue, 242 Ill. 2d 272 (2011)
• First American Bank Corp. v. Henry, 239 Ill. 2d 511 (2011)
• Beelman Trucking v. Illinois Workers' Compensation Comm'n, 233 Ill. 2d 364 (2009)
• Central Illinois Light Co. v. Department of Revenue, 336 Ill. App. 3d 908 (2003)

Source

• Landing page: https://illinoisattorneygeneral.gov/opinions/
• Original PDF: https://illinoisattorneygeneral.gov/dA/86dd3ba470/2012%2012-001%20LABOR%20Applicability%20of%20the%20Right%20to%20Privacy%20in%20the%20Workplace.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS

Lisa Madigan
ATTORNEY GENERAL

December 20, 2012

FILE NO. 12-001

LABOR:
Applicability of the Right to Privacy in the Workplace Act to a Non-Profit Hospital

The Honorable David Luechtefeld
Assistant Minority Leader
State Senator, 58th District
700 North Front Street
Okawville, Illinois 62706

Dear Senator Luechtefeld:

I have your letter inquiring whether subsection 5(b) of the Right to Privacy in the Workplace Act (the Act) (820 ILCS 55/5(b) (West 2010)) permits a non-profit hospital to make hiring decisions based on whether an individual uses tobacco products off of the hospital's premises during non-working hours. Subsection 5(a) of the Act (820 ILCS 55/5(a) (West 2010)) generally prohibits an employer from making employment decisions based upon whether an "individual uses lawful products[, such as tobacco products,] off the premises of the employer during nonworking hours."¹ Subsection 5(b) of the Act, however, provides that the general prohibition set out in subsection 5(a) of the Act does not apply to any employer that is a non-profit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public. Assuming that a particular non-profit hospital is found to be a non-profit organization that, as one of its primary purposes or objectives, discourages the use of tobacco products by the general public, then, under subsection 5(b) of the Act, it is my opinion that the hospital may make its hiring decisions based on whether a particular individual uses tobacco products off of the hospital's premises during non-working hours. Whether a particular non-profit hospital satisfies the statutory criterion presents a factual question that cannot be resolved in a legal opinion of the Attorney General.

¹ Other provisions of the Act prohibit employers from making inquiries regarding claims filed by prospective employees under the Workers' Compensation Act or the Workers' Occupational Diseases Act (820 ILCS 55/10 (West 2010)) and address an employer's use of any Electronic Employment Verification System (820 ILCS 55/12 (West 2010)).

ANALYSIS

Section 5 of the Act addresses employment decisions based on an employee's use of lawful products and provides, in pertinent part:

> (a) Except as otherwise specifically provided by law and except as provided in subsections (b) and (c) of this Section, it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours.
>
> (b) This Section does not apply to any employer that is a non-profit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public. This Section does not apply to the use of those lawful products which impairs an employee's ability to perform the employee's assigned duties. (Emphasis added.)

The term "lawful products" is defined by administrative rule to include "all tobacco products, all alcoholic beverages, all food products, all over-the-counter drugs, and any drugs lawfully prescribed by the employee's own physician." (Emphasis added.) 56 Ill. Adm. Code § 360.110(g) (2012), added at 16 Ill. Reg. 16586, effective October 20, 1992. Similarly, the term "employer" is defined in the Act's administrative rules to include "any individual, partnership, association, corporation, business trust, enterprise or any person or group of persons for whom the employee is performing work with a reasonable expectation of compensation." 56 Ill. Adm. Code § 360.110(d) (2012), added at 16 Ill. Reg. 16586, effective October 20, 1992. Accordingly, a hospital with compensated employees is an "employer" under the Act.

The primary purpose of statutory construction is to ascertain and give effect to the General Assembly's intent. People v. Marshall, 242 Ill. 2d 285, 292 (2011). The language of a statute remains the best indication of legislative intent. Board of Education of Auburn Community Unit School District No. 10 v. Department of Revenue, 242 Ill. 2d 272, 279 (2011). Where statutory language is clear and unambiguous, it must be given effect as written. First American Bank Corp. v. Henry, 239 Ill. 2d 511, 516 (2011).

Subsection 5(a) generally prohibits a hospital or other employer from basing its hiring and other employment decisions on whether an individual uses tobacco products or other lawful products off the employer's premises during non-working hours. Subsection 5(b) exempts from the general prohibition set forth in subsection 5(a) an employer that is a non-profit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products (including tobacco products) by the general public.

Neither the Act nor its rules define the term "non-profit organization."² It is well established, however, that undefined statutory terms must be given their ordinary and popularly understood meaning. Beelman Trucking v. Illinois Workers' Compensation Comm'n, 233 Ill. 2d 364, 373 (2009). The term "non-profit" generally means "[n]ot seeking profit" (American Heritage Dictionary 847 (2nd coll. ed. 1982)) or "not conducted or maintained for the purpose of making a profit" (Webster's Third New International Dictionary 1538 (1993)). Similarly, the term "organization" refers to "any unified, consolidated group of elements; systematized whole; esp[ecially], a) a body of persons organized for some specific purpose, as a club, union, or society b) the administrative personnel or executive structure of a business[.]" (Italics in original.) Webster's New World Dictionary 1002 (2nd coll. ed. 1976). Giving the term "non-profit organization" its ordinary and popularly understood meaning, a business, such as a hospital, that is not conducted or maintained for the purpose of making a profit may be a "non-profit organization" to which subsection 5(b) of the Act applies.

² In contrast, the General Assembly includes specific definitions for the term "non-profit organization" in other statutes. For example, section 123D-5 of the Illinois Insurance Code (215 ILCS 5/123D-5 (West 2010)) defines "nonprofit organizations" as "organizations described in paragraph (3) of subsection (c), and exempt from taxation under subsection (a), of Section 501 of the Internal Revenue Code." Section 10 of the High Speed Internet Services and Information Technology Act (20 ILCS 661/10 (West 2010)) defines "nonprofit organization" to mean "an organization that (i) is a nonprofit organization as described in Section 501(c)(3) of the federal Internal Revenue Code of 1986 and exempt from tax under Section 501(a) of that Code; (ii) has no part of the net earnings of which inures to the benefit of any member, founder, contributor, or individual; (iii) is organized under, subject to, and has all the powers and duties of a not-for-profit corporation under the General Not For Profit Corporation Act of 1986; (iv) has statewide representation; and (v) has a board of directors that is not composed of a majority of individuals who are also employed by, or otherwise associated with, any federal, State, or local government or agency."

In order for a non-profit organization to qualify for the subsection 5(b) exemption, however, the non-profit organization must also have "as one of its primary purposes or objectives, discourag[ing] the use of one or more lawful products by the general public." 820 ILCS 55/5(b) (West 2010). The Illinois Appellate Court has stated that "'[p]rimary' is defined as 'original,' 'fundamental,' and 'basic.'" Central Illinois Light Co. v. Department of Revenue, 336 Ill. App. 3d 908, 912 (2003), citing Webster's Third New International Dictionary 1800 (1986). This qualifying provision indicates that the General Assembly did not intend to exempt non-profit organizations that only incidentally discourage the use of tobacco or other lawful products from the Act's general prohibition, but rather the General Assembly intended to exempt those non-profit organizations that have as their basic or fundamental purpose discouraging the use of tobacco products or other lawful products.

The legislative history of subsection 5(b) further illustrates the General Assembly's intent. Subsection 5(b) of the Act was added by Senate Amendment No. 1 to House Bill 1533, which was enacted as Public Act 87-807, effective July 1, 1992. During the legislative debate on House Bill 1533 before Senate Amendment No. 1 was adopted, a member of the House of Representatives expressed concerns that "the American Heart Association, the Cancer Society, [and] the Lung Association, would be required to hire an individual who is a tobacco smoker" and that "[o]rganizations which work against problems in our society dealing with alcoholism would be required to hire people who drink even to excess." Remarks of Rep. Pullen, May 2, 1991, House Debate on House Bill No. 1533, at 51-52.³

Whether a particular non-profit hospital satisfies the statutory criterion is a question of fact that cannot be resolved in a legal opinion of the Attorney General. See Statement of Policy of the Illinois Attorney General Relating to Furnishing Written Opinions, http://www.illinoisattorneygeneral.gov/opinions/opinionpolicy.pdf. Assuming, however, that a specific non-profit hospital is found to be an organization that, as one of its primary purposes or objectives, discourages the use of tobacco products by the general public, then that particular non-profit hospital may make its hiring decisions based on whether a particular individual uses tobacco products off of the hospital's premises during non-working hours.

³ Legislation was introduced in the 97th General Assembly to amend subsection 5(b). Senate Bill 2945 proposed to amend subsection 5(b) to provide:

(b) This Section does not apply to any employer that is a non-profit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public. This Section does not apply to any for-profit employer that, as its sole business purpose or objective, provides medical or hospital treatment to patients who have a cancerous condition, and that refuses to hire or discharges any individual, or otherwise disadvantages any individual, with respect to compensation, terms, conditions, or privileges of employment because the individual uses tobacco products, including cigarettes, pipes, cigars, chewing tobacco, snus, snuff, clove cigarettes, electronic cigarettes, and similar products. This Section does not apply to the use of those lawful products which impairs an employee's ability to perform the employee's assigned duties. (Emphasis added, underscore in original.)

The Governor vetoed Senate Bill 2945 on August 17, 2012. The Senate vote to override the veto did not gain the three-fifths majority as required. See Ill. Const. 1970, art. IV, §9(c).

CONCLUSION

Subsection 5(a) of the Right to Privacy in the Workplace Act generally prohibits an employer from making employment decisions based upon whether an "individual uses [tobacco or other] lawful products off the premises of the employer during nonworking hours." Subsection 5(b) of the Act, however, provides that this prohibition does not apply to a non-profit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products, including tobacco products, by the general public. Whether a particular hospital meets the statutory criterion is a question of fact that cannot be resolved in a legal opinion of the Attorney General. Assuming, however, that a specific non-profit hospital is found to be an organization that, as one of its primary purposes or objectives, discourages the use of tobacco products by the general public, then, under subsection 5(b) of the Right to Privacy in the Workplace Act, it is my opinion that the non-profit hospital may make its hiring decisions based on whether a particular individual uses tobacco products off of the hospital's premises during non-working hours.

Very truly yours,

LISA MADIGAN
ATTORNEY GENERAL