2022 Ballot Measures Will Address Abortion, Marijuana and Minimum Wage

​Employers should keep an eye on this year's Election Day results, as many states are presenting ballot measures on abortion, marijuana, minimum wage and unions.

Statewide ballot measures will be put to a vote in 37 states on Nov. 8. On Dec. 10, voters in Louisiana will decide three ballot measures, according to Ballotpedia.

Abortion

Abortion is expected to be a dominant issue on Election Day in the wake of the U.S. Supreme Court's ruling in June, which left it up to each state to prohibit abortion or keep it legal. The court reversed the precedent it had established in Roe v. Wade, which protected the right to abortion throughout the country for 49 years. Abortion access impacts employers and HR in myriad areas, including health benefits, paid and unpaid leave, recruiting, and retention.

Voters in California, Michigan and Vermont will decide whether to include the right to abortion in their state's constitution. In Oregon, a ballot measure, if passed, would ensure that every Oregon resident has access to cost-effective, clinically appropriate and affordable health care as a fundamental right.

"The practical effect of most of these [ballot] measures will be limited, given that California, Vermont and Oregon already provide robust protections for reproductive health care, including abortion," said Pierce Blue, an attorney with Morgan Lewis in Washington, D.C. "Michigan is the one exception. A vote against the proposed amendment could breathe new life into efforts to enforce an existing, pre-Roe ban, which is currently enjoined, or pass new restrictions in the next legislative session."

Kentucky has proposed a ballot measure that would clarify the state constitution does not provide the right to abortion.

"The ballot measure in Kentucky will likely have minimal impacts on employers," Blue said. "The Legislature has already enacted a fetal heartbeat law and a trigger law banning nearly all abortion from conception forward. Passage of the amendment, which is widely expected, would simply confirm that the Legislature has the authority to enact these restrictions and effectively end the ongoing legal challenges to those laws."

In Montana, a ballot measure, if passed, would require health care providers to give medical care to infants born alive after an abortion procedure. "Our understanding is that this is an exceptionally rare event, especially in a state like Montana where abortion is prohibited at or after the point of fetal viability," Blue said. "If the initiative passed, it would not ban abortion or otherwise affect the ability of Montana residents to seek an abortion in the state."

In August, voters in Kansas rejected a ballot measure that would have barred constitutional protections for abortion.

Marijuana Legalization

Voters in Arkansas, Maryland, Missouri, North Dakota and South Dakota will consider ballot measures that would permit recreational use of marijuana.

[SHRM Resource Hub Page: Marijuana and the Workplace]

"As more and more states legalize marijuana, employers must review their drug and alcohol policies to ensure compliance with all applicable laws," said Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y. "Unfortunately, marijuana laws differ from state to state, and employers must be aware of the differences."

Nineteen states and the District of Columbia have already legalized small amounts of cannabis for adult recreational use. Thirty-seven states and the District of Columbia allow the medical use of cannabis products, according to the National Conference of State Legislatures.

"The American public has become more receptive to marijuana use over the last decade," Russo said. "More importantly, state governments want the tax revenue that is generated from the sale of marijuana."

"There is clearly strong support for some legalization, but the ultimate outcome is uncertain," said Jason Geller, an attorney with Fisher Phillips in San Francisco.

Minimum Wage

Nebraska; Nevada; and Washington, D.C. have put minimum wage reforms on the ballot. Nebraska's ballot measure would incrementally increase the minimum wage to $15 per hour by 2026. Nevada's proposal would gradually raise the minimum wage to $12 per hour by July 1, 2024. Washington, D.C.'s initiative would incrementally increase the minimum wage for tipped employees from its current level of $5.05 per hour to equal the minimum wage of nontipped employees by 2027. Currently, the district's minimum wage for nontipped employees is $16.10 per hour.

If approved, these measures would increase labor costs for employers, especially in industries with a large number of hourly, low-wage workers, such as food service and hospitality.

Unions

This year has seen a lot of action around unionization at companies like Amazon and Starbucks.

A ballot measure in Illinois would create a state constitutional right to collective bargaining. By contrast, a ballot measure in Tennessee would prohibit employers from requiring labor union membership for employees as a condition of employment.

The percentage of U.S. workers who belong to a union has fallen from 20 percent in 1983 to 10 percent in 2021, according to a survey from Pew Research Center.

Equal Rights

In Nevada, a ballot measure would prohibit discrimination based on race, color, creed, sex, sexual orientation, gender identity, age, disability, ancestry and national origin.

Such equal rights protections have become more common recently at the state level. Twenty-one states have equal rights amendments and six states have limited gender equality provisions, according to the Brennan Center for Justice, a nonprofit law and public policy institute in New York City.