The Midterms Happened. Now What?

Elections 2018

The midterms are over and my mail is no longer filled with HUGE political direct mail pieces that hide my favorite magazines and my 20-percent-off-one-item coupons to a store that has EVERYTHING anyone could possibly need.

Anyhow, yesterday was a busy day at ThinkHR as we analyzed the ballot measures, notifying our customers same-day about changes related to their states and providing the guidance to keep their workplaces up-to-date.

In this post, we aren’t going to discuss the implications of blue vs. red; nor are we going to get political – instead, we present just the facts about ballot initiatives with workplace impacts from a handful of states.

So What Happened?

Voters in three states approved ballot initiatives related to marijuana and voters in two states approved ballot initiatives incrementally increasing the minimum wage.

Side note: I did some research to determine why one state referred to it as marihuana as opposed to marijuana. Well, the federal Drug Enforcement Administration (DEA) uses the ‘h’ spelling here and then I read here about the prejudice related to the use of ‘h’ and then here about the federal Marihuana Tax Act of 1937. And then it was just puzzling . . . so, to save you from any confusion we are going with marijuana with a ‘j’, consistently.

Michigan Legalized the Recreational Use of Marijuana

Michigan voters approved the Michigan Regulation and Taxation of Marijuana Act (Michigan Proposal 18-1) legalizing the recreational use and possession of marijuana for persons age 21 and older. The act does not:

  • Require an employer to permit or accommodate conduct otherwise allowed by the act in any workplace or on the employer’s property.
  • Prohibit an employer from disciplining an employee for a workplace drug policy violation or for working while under the influence of marijuana.
  • Prevent an employer from refusing to hire, discharge, discipline, or otherwise take an adverse employment action against a person with respect to hiring, tenure, terms, conditions, or privileges of employment because of the employee’s violation of a workplace drug policy or because the employee was working while under the influence of marijuana.

The initiative does not have an effective date. However, according to Michigan law, ballot initiatives go into effect 10 days after the date voting results are certified, which experts predict will occur sometime in December 2018.

Missouri and Utah Legalized Medical Marijuana

Missouri voters approved the Medical Marijuana and Veteran Healthcare Services Initiative (Missouri Amendment 2), amending the state’s constitution and legalizing marijuana for medicinal purposes. The initiative does not permit a person to bring a claim against any employer, former employer, or prospective employer for wrongful discharge, discrimination, or any similar cause of action or remedy, based on the employer prohibiting an employee, former employee, or prospective employee from being under the influence of marijuana while at work or disciplining the employee, up to and including termination from employment, for working or attempting to work while under the influence of marijuana. The initiative is effective December 6, 2018.

And in Utah, voters approved the Utah Medical Cannabis Act (Utah Proposal 2) legalizing the medical use of marijuana for individuals with qualifying medical illnesses. Under current Utah law, cannabis can only be grown, processed, or sold by the state and the state may sell cannabis only to a qualified research institution or a person who is terminally ill with less than six months to live. The new act does not eliminate or change Utah’s existing cannabis-related law, but adds to it by establishing paths for:

  • Cannabis production and distribution via private facilities that grow, process, test, and sell medical cannabis.
  • An approval process for individuals to receive and use medical cannabis while also expanding the group of people eligible to use medical cannabis. Medical cannabis cards must be available from the Utah Department of Health by no later than March 1, 2020.

The act does not discuss how the law will impact employers; however, implementing regulations (to be released at a later date) are expected to provide further guidance.

What About Minimum Wage Increases?

Arkansas voters approved the Arkansas Minimum Wage Increase Initiative (Issue 5), which will incrementally raise the state’s minimum wage, per Ark. Code Ann. § 11-4-210(a), as follows:

  • $9.25 per hour effective January 1, 2019.
  • $10 per hour effective January 1, 2020.
  • $11 per hour effective January 1, 2021.

Missouri voters approved the $12 Minimum Wage Initiative (Proposition B), increasing the state’s minimum wage as follows:

  • $8.60 per hour effective January 1, 2019.
  • $9.45 per hour effective January 1, 2020.
  • $10.30 per hour effective January 1, 2021.
  • $11.15 per hour effective January 1, 2022.
  • $12 per hour effective January 1, 2023.

As of January 1, 2024, Missouri’s minimum wage will increase or decrease based on the Consumer Price Index for Urban Wage Earners and Clerical Workers. If at any time the federal minimum wage rate is higher than the state’s rate, the federal rate will apply. However, none of these increases apply to public employers. The new law also imposes the following:

  • Employers who pay an employee less than is the wage required by law will be liable to the employee for the full amount of the wage rate and an additional amount equal to twice the unpaid wages as liquidated damages.
  • All actions for the collection of any deficiency in wages must commence within three years (an extension from the former standard of two years) of the accrual of the cause of action.

What Now?

Marijuana continues to be illegal under federal law and employers are not required to tolerate employees under the influence of marijuana in the workplace. Think of it like alcohol –a couple drinks at lunch could get an employee in as much trouble as a couple of puffs before returning to work.

Stay tuned to our law alerts and blog as regulations are expected to churn out from the applicable governmental departments. Our employee handbook builder will be updated regularly to reflect the latest laws.

And don’t forget to implement those higher minimum wage rates.

About Samantha Yurman, JD

Samantha Yurman is one of ThinkHR's legal editors. She is a licensed attorney in California and Florida with over 16 years of experience researching and analyzing human resources legislation and law. Samantha uses her expertise to translate highly technical legal topics into usable information for our clients.