Abortion Rights Bolstered at State Level

​Editor's Note: This article was updated to include Nevada's election results on Nov. 15.

This year's Election Day resulted in a strengthening of abortion rights in several states, five months after the Supreme Court's ruling in June left it up to each state to prohibit abortion or keep it legal.

In a June 24 decision, the Supreme Court reversed the precedent that had been set in Roe v. Wade, which protected the right to abortion throughout the country for 49 years.

Abortion access or restriction affects HR's ability to offer and manage health benefits, paid and unpaid leave, recruiting, and retention.

Following the Supreme Court ruling, some employers changed employee benefits and leave policies. While several employers enhanced abortion coverage under their group health plans, others provided benefits outside the health plan, for instance by creating a relief fund to pay expenses for employees and dependents who need to travel to another state or making funds available through a health reimbursement arrangement. Others offered a one-time bonus for travel and procedure costs in a state permitting abortions.

Attorneys at national law firm Ropes and Gray wrote that "some employers have contemplated administering travel reimbursements outside of their health plan and treating such reimbursements as taxable income to the employee." 

They cautioned that "while the seeming simplicity of such an approach may make it appear attractive, it is not without its risks, [such as] the need to respect the right of an employee to keep her health care decisions private against requiring proper documentation of the expenses incurred."

States' Response

Election night culminated in support for abortion access. Voters in California, Michigan and Vermont approved ballot measures to include the right to abortion in their state's constitution.

Kentucky voters rejected a ballot measure that said the state constitution did not provide the right to abortion. In August, voters in Kansas rejected a similar ballot measure that would have barred constitutional protections for abortion.

In Montana, voters rejected a ballot measure that would have required health care providers to give medical care to infants born alive after an abortion procedure. Meanwhile, Oregon voters narrowly approved a ballot measure to ensure that every Oregon resident will have access to cost-effective, clinically appropriate and affordable health care as a fundamental right.

"The law in this area remains unsettled, and HR professionals and employers should continue to monitor state-level developments, particularly as the state legislatures begin to return for sessions in January 2023," said Pierce Blue, an attorney with Morgan Lewis in Washington, D.C. "The variations in state laws and rapid developments in this area make it challenging for employers to ensure that their benefit programs are in compliance. Unfortunately, it will likely take years for important interstate compliance issues to be settled in litigation."

Minimum Wage Hikes

Minimum wage increases prevailed in Nebraska, Nevada and Washington, D.C. Nebraska will incrementally increase the minimum wage to $15 per hour by 2026. Washington, D.C., will incrementally increase the minimum wage for tipped employees from its current level of $5.05 to equal the minimum wage of nontipped employees by 2027. Currently, the district's minimum wage for nontipped employees is $16.10. Nevada will set the minimum wage at $12 per hour, beginning on July 1, 2024. 

These reforms will increase labor costs for employers, especially in industries with a large number of hourly, low-wage workers, such as food service and hospitality.

"The direct impact of any minimum wage increase on an employers' costs will depend on a variety of factors, including the employers' industry, size and geographic location," said Paul Piccigallo, an attorney with Littler in New York City. "Increasing the minimum wage often has ancillary effects in other areas of employment law. For example, certain types of premium pay available to employees in different states must be paid at the applicable minimum wage rate."

Marijuana Legalization

Voters were split on proposals to legalize marijuana. Ballot measures to permit recreational use of cannabis prevailed in Maryland and Missouri, but failed in Arkansas, North Dakota and South Dakota. Meanwhile, Colorado voters approved a ballot measure to legalize psychedelic plants and fungi.

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.

"Employers operating in multiple jurisdictions can be conducting business both in states that protect employee use of medical marijuana and in states that criminalize all use of marijuana," said James Evans, an attorney with Alston & Bird in Los Angeles. "HR professionals should pay particular attention to their written policies to ensure that they are consistent with the states in which they have employees."

In states that protect the off-duty use of marijuana, employers "must revise their policies and practices regarding discipline for marijuana use, provided that an employee is not impaired while at work," said Jason Geller, an attorney with Fisher Phillips in San Francisco.

Employees don't have the right to use cannabis or be impaired while at work. "Workplace impairment, dishonesty and safety violations remain legally defensible reasons to take action against an employee," Evans noted.

The successful ballot measures may prompt some employers to change their drug-testing policies. "Given the hiring challenges many employers are experiencing, consider getting rid of cannabis testing altogether in states where recreational use is legalized," Evans recommended. "Employers are entitled to conduct cannabis tests for employees in safety-sensitive positions, but be careful. California, for example, prohibits the use of metabolite testing, given that cannabis remains in one's system for a long time and is not a good measure of impairment."

Union Membership

Two state ballot results could have opposite effects on union membership in the future. Tennessee voters approved a measure to prohibit employers from requiring labor union membership for employees as a condition for employment. Illinois considered approved a measure to create a state constitutional right to collective bargaining, but it was too early to call by press time.

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