State Ballot Measures May Impact the Workplace

​On Nov. 7, voters in Ohio and Texas will decide the fate of several ballot measures that could affect employers' benefits and policies. Two of the ballot measures are in Ohio, and one is in Texas.

Ohio Ballot Measures

Voters in Ohio will weigh in on a ballot measure that would legalize recreational marijuana for adults ages 21 and older. If voters approve it, Ohio would become the 24th state to legalize recreational cannabis use.

"That does very much affect employers because employers are still struggling to find the right landing place on their policies as far as off-duty marijuana use by their employees and what efforts they want to make to govern marijuana use outside of the workplace," said Leon Rodriguez, an attorney with Seyfarth in Washington, D.C.

In a continuing trend, he expects more states to legalize cannabis use. "It does seem like it will keep going in that direction," he said. However, earlier this year, Oklahoma voters rejected a ballot initiative to legalize recreational marijuana.

"With potentially more than half the population living in legalized states, perhaps 2023 will bring more focus on legalization at the federal level," said August Heckman, an attorney with Morgan Lewis in Princeton, N.J.

In the meantime, Ohio employers "should have a policy for off-duty marijuana use that is consistent with the needs of their particular workplace and that also recognizes the issues that arise around the medicinal use of marijuana," Rodriguez said.

Also on Nov. 7, Ohio voters will consider another ballot measure to give residents the right to make and carry out reproductive decisions, including abortion, contraception and fertility treatment. This measure would expand abortion rights in the state, but it permits Ohio to ban abortion after fetal viability, except when necessary to protect the pregnant patient's life or health. Fetal viability means the time when the fetus has a significant likelihood of survival outside the uterus.

Based on the ballot outcome, Ohio employers are "going to need to determine if there are any changes they need to make to their employee coverage for abortion," Rodriguez said. "The outcome of this is predictive about where Ohio may land in the long run on abortion. If this does not succeed, perhaps there could be further efforts in Ohio to erode access to abortion under state law."

Whether the ballot measure passes or fails, Rodriguez doesn't think it will cause most employers to alter what they're already doing in their medical coverage or travel benefits for workers seeking abortions.

Currently, abortion is illegal in Ohio after 22 weeks of gestation. Patients seeking an abortion must make two trips—one for in-person counseling and another at least 24 hours later for the procedure, according to the Guttmacher Institute, a New York City-based research and policy organization focused on reproductive health.

Twenty-one states ban abortion after 18 weeks of gestation, with some restricting it earlier than that, according to the Guttmacher Institute. States vary in the exceptions permitted. Abortion access or restriction affects HR's ability to offer and manage health benefits, paid and unpaid leave, recruiting, and retention.

"To date, ballot initiatives to protect rather than restrict abortion rights have been more successful, even in more conservative states like Kansas, Kentucky and Montana. Likewise, efforts led by abortion opponents to make it harder to amend state constitutions failed in Ohio and Missouri," said Shane Siegel, an attorney with Morgan Lewis in Philadelphia. "Campaigns to restore abortion rights are underway in Arizona, Florida, South Dakota and Missouri. We anticipate that ballot initiatives around reproductive rights will continue, with Democrats and Republicans alike investing significantly in these campaigns, given the high stakes for both political parties."

Texas Ballot Measure

In Texas, voters will decide on a ballot measure that would authorize the state legislature to make cost-of-living adjustments or other benefits enhancements for annuitants in the state's teacher retirement system.

Similarly, on June 14, Texas Gov. Greg Abbott signed Senate Bill 10 to permit the retirement system to make a one-time cost-of-living adjustment payable to annuitants receiving a monthly death or retirement benefit annuity.

Private and public employers provide retirement benefits in order to attract and retain talent. About 94 percent of employers offered traditional 401(k)s in 2023, while 71 percent offered Roth 401(k)s, and 16 percent offered defined benefit pensions, according to research from SHRM.

Coming Up Next Year

In California, two ballot measures could dramatically affect employers next year. Voters will decide in 2024 whether to repeal California's Private Attorneys General Act, which allows citizens to bring lawsuits over alleged labor law violations. California residents also will vote on whether to increase the state minimum wage to $18 per hour.

"Next year is going to be a big election year," said Walter Stella, an attorney with Cozen O'Connor in San Francisco. "That's going to bring more people out. That's going to be a strategy for bigger agenda bills."