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Ballots weigh on business

Voters in 38 states will consider 174 statewide ballot measures on Nov. 6, 2012, according to the National Conference of State Legislatures (NCSL). These proposals are wide-ranging, with a number of them having potential workplace implications.

Questions appear on the ballots in more than one state concerning:

• Medical marijuana use;
• Legalization of marijuana; and
• Same-sex marriage.

In addition, there are several proposals in single states that may affect that state’s employers.

Medical marijuana

Seventeen states (Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington) and the District of Columbia have already legalized marijuana for medical use.

These laws may affect employers in several ways. Employees’ or applicants’ use of medical marijuana may raise safety concerns and may motivate employers to re-examine drug- and alcohol-testing policies. Employers may also wonder whether they have an obligation to accommodate an employee’s medical marijuana use under federal and state disability laws.

Possession of medical marijuana is still a federal offense.

The most recent court decision to address the workplace ramifications of medical marijuana use, a decision from the 6th U.S. Circuit Court of Appeals issued on Sept. 19, 2012, upheld the dismissal of a wrongful discharge claim brought under the Michigan Medical Marijuana Act (MMMA), finding that the provisions of the MMMA do not apply to private-sector employers. Previous court decisions concerning the laws in California, Montana, Oregon and Washington also concluded that the laws do not apply to employment, but merely create a defense to a drug charge for an individual with a medical marijuana permit.

The legalization of medical marijuana appears on the November ballot in two states, Arkansas and Massachusetts. Montana puts forth a proposal that would enact a new medical marijuana program.

The Arkansas Medical Marijuana Act would allow patients with qualifying conditions to buy marijuana from nonprofit dispensaries with a doctor's recommendation. Arkansas is the first southern state to put the medical marijuana question to voters.

Massachusetts’ Ballot Question 3 would eliminate state criminal and civil penalties for the medical use of marijuana by qualifying patients. To qualify, a patient must have been diagnosed with a debilitating medical condition and would have to obtain a written certification from a physician that the patient would likely obtain a net benefit from medical use of marijuana.

In 2004, Montana voters approved I-148, creating a medical marijuana program for patients with debilitating medical conditions. Senate Bill 423, which must be affirmed by the voters, repeals I-148 and enacts a new medical marijuana program, which permits patients to grow marijuana and grants local governments authority to regulate marijuana providers, among other provisions. 

Legalization of marijuana for recreational use

Three states are seeking to go farther than medical marijuana laws allow. Provisions on the ballots in Colorado (Amendment 64), Oregon (Measure 80) and Washington (Initiative 502) would legalize the possession of limited amounts of marijuana for recreational use by adults over the age of 21. Under the proposals in all three states, marijuana would be sold through licensed stores, subject to state and local regulation, and proceeds from the sale would be taxed.

According to the NCSL, independent polls have shown proponents leading in Washington and Colorado, but the outcome remains in doubt. In California in 2010, similar Proposition 19 lost 53.5 percent to 46.5 percent after an early lead in favor disappeared.

Same-sex marriage

Employers in states that recognize same-sex marriage must address questions concerning benefits administration and, in some cases, state tax withholding and reporting. Same-sex marriage is currently legal in Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont and Washington, D.C.

Legalization of same-sex marriage is on the November ballot in Maine, Maryland and Washington. A same-sex marriage ban will be considered by voters in Minnesota.

An initiative on Maine’s ballot, Question 1, seeks to legalize same-sex marriage. This is the first time a state's voters have been directly asked to legalize same-sex marriage, rather than prohibit it.

In Maryland and Washington, legislatures recently passed laws legalizing same-sex marriage. The questions on the ballot in these two states -- Question 6 in Maryland and Referendum 74 in Washington -- seek to block these new laws. They use a device called the popular referendum, which permits opponents of a new law to veto it through a popular vote. In both states, a "yes" vote on Nov. 6 would have the effect of approving the legislatures' move to legalize same-sex marriage. If voters vote "no," the new laws passed by the legislature will be effectively vetoed and will not take effect.

Minnesota voters will consider Amendment 1, which would amend the state constitution to define marriage as a union between a man and a woman. Minnesota already has a state law banning same-sex marriage. Voters in North Carolina approved a similar amendment to their state constitution in May 2012, and voters in 29 other states have amended their constitutions to limit marriage to opposite-sex couples. Eleven states have done so by enacting state laws.

According to the NCSL, recent polls in Maine, Maryland and Washington show voter support for the legalization of same-sex marriage. 

California ban on political contributions by payroll deduction

Proposition 32 would restrict union political fundraising by prohibiting the use of payroll-deducted funds for political purposes. The same use restriction would apply to payroll deductions, if any, by corporations or government contractors.

The proposal permits voluntary employee contributions to employer or union committees if authorized yearly, in writing. It prohibits unions and corporations from contributing directly or indirectly to candidates and candidate-controlled committees.

Union rights in Michigan

Proposal 2 would grant public and private employees the constitutional right to organize and bargain collectively through labor unions. It also would invalidate existing or future state or local laws that limit the ability to join unions and bargain collectively, and to negotiate and enforce collective bargaining agreements. It would permit laws to be enacted to prohibit public employees from striking.

Affirmative action in Oklahoma

State Question 759 would prohibit the state from granting preferential treatment to or discriminating against any individual or group on the basis of race, color, sex, ethnicity or national origin in the operation of public employment, public education or public contracting.

Smoking ban in North Dakota

Measure 4 would prohibit smoking, including the use of electronic smoking devices, in public places and most places of employment in the state, including certain outdoor areas. It would provide notification and enforcement responsibilities, along with penalties for violations.

Joanne Deschenaux, J.D., is SHRM’s senior legal editor.

©2012 SHRM. All rights reserved.

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