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Four States Approve Same-Sex Marriage; Colorado and Washington Legalize Marijuana Use

By Joanne Deschenaux  11/7/2012
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As the polls closed and the votes were counted on Nov. 7, 2012, it became clear that history was being made. For the first time, voters approved same-sex marriage. Electorates in 35 states had previously rejected it.

Maryland, Maine and Washington all passed laws affirming the right of same-sex couples to marry. In addition, Minnesota voters turned down a constitutional amendment that would have defined marriage as between one man and one woman.

Same-sex marriage is currently legal in six other states (Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont), where it was approved either through either court decisions or legislative action.

As the legalization of same-sex marriage spreads across the country, one result may be confusion and uncertainty for employers regarding the nature of their obligation to provide domestic benefits, according to Todd Solomon, an attorney in the Chicago office of McDermott Will & Emery.

“Employers may be facing more complicated options and obligations with respect to providing benefits for employees’ same-sex spouses and partners,” Solomon said. “The rapid developments in state laws recognizing marriage and other forms of same-sex unions can be confusing for employers providing benefits to employees’ same-sex spouses and partners.”

Solomon advises multistate employers in particular to consider whether their benefit plans and procedures need to be updated to address the conflicting state law approaches to the recognition of marriages and other forms of same-sex unions.

Recreational Marijuana Use Approved in Two States

Colorado and Washington made drug-law history when voters in both states approved measures to legalize and control recreational marijuana use. The provisions legalize the possession of limited amounts of marijuana for recreational use by adults over the age of 21. They allow marijuana to be sold through licensed stores, subject to state and local regulation. Proceeds from the sale will be taxed.

Voters in Oregon rejected a similar measure.

In Washington and Colorado, there is a possibility that the new laws will set up a confrontation with federal authorities. Federal law prohibits the use of marijuana, even for medicinal purposes.

Voters in Massachusetts approved the use of medical marijuana, but the Arkansas electorate turned down a similar bill.

Montana voters overturned strict restrictions on the use of medical marijuana.

Medical marijuana 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 also may wonder whether they have an obligation to accommodate an employee’s medical marijuana use under federal and state disability laws. Recent court decisions, however, have all concluded that laws legalizing medical marijuana do not apply to employment, but merely create a defense to a drug charge for an individual with a medical marijuana permit.

Other Employment-Related State Ballot Provisions

California voters rejected Proposition 32, which would have restricted union political fundraising by prohibiting the use of payroll-deducted funds for political purposes. The same use restriction would have applied to payroll deductions by corporations or government contractors.

In Michigan, voters defeated Proposal 2, which would have granted public and private employees the constitutional right to organize and bargain collectively through labor unions. It also would have invalidated existing or future state or local laws that limited the ability to join unions and bargain collectively, and to negotiate and enforce collective bargaining agreements.

Oklahoma voters passed State Question 759, prohibiting 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. 

North Dakota passed Statutory Measure No. 4, which prohibits smoking, including the use of electronic smoking devices, in public places and most places of employment in the state, including certain outdoor areas. The measure provides notification and enforcement responsibilities, along with penalties for violations.

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