This election resulted in a number of new ballot initiatives that impact employers. Below we provide a summary of state and local voter-approved ballot measures that impact the workplace.

State initiatives:

California:

Voters approved a measure that classifies app-based transportation and delivery drivers as independent contractors and adopts labor and wage policies specific to app-based drivers and companies, including requirements for covered companies to offer or adopt:

• A minimum earning guarantee of 120 percent of the minimum wage for engaged time;
• Compensation for vehicle expenses;
• Insurance to cover on-the-job injuries as well as automobile accident insurance;
• Healthcare subsidies for qualifying drivers;
• Policies and practices that provide protection against harassment and discrimination;
• Contractual rights and appeal processes;
• Zero-tolerance policies for drugs or alcohol;
• Criminal background checks for drivers; and
• Driver safety training.

Colorado:

Voters approved the creation of a paid family and medical leave program, which will be funded by employers and employees. However, employers with nine or fewer employees aren't required to pay the employer portion of the premium. Contributions to the program will start in 2023 and eligible employees may take leave beginning in 2024.

Eligible employees may receive up to 12 weeks of leave and wage-replacement benefits per year for the following purposes:

• To care for their own serious health condition;
• To care for a new child during the first year after the birth, adoption, or placement through foster care of that child;
• To care for a family member with a serious health condition;
• Because of any qualifying exigency arising out of the fact that a family member is on active duty (or has been notified of an impending call or order to active duty) in the armed forces; and
• When the employee or their family member is a victim of domestic violence, stalking, or sexual assault.

Note: Employees with a serious health condition related to pregnancy or childbirth complications may take up to an additional four weeks (16 weeks in total).

Florida:

Voters approved a ballot measure that will increase the state's minimum wage as follows:

Beginning on September 30, 2027, the minimum wage will be adjusted annually for inflation and take effect the following January.

Note: For Florida employers, the minimum wage is scheduled to increase twice in 2021. Under existing law, the minimum wage in Florida will increase to $8.65 per hour on January 1, 2021. Under the ballot measure, it will increase again on September 30, 2021 to $10 per hour.

Marijuana use:

As a result of the election, Arizona, Montana, and New Jersey will join the growing list of states that allow recreational marijuana. In Mississippi, voters approved a ballot measure allowing medical marijuana. In South Dakota, voters approved ballot measures allowing both medical and recreational marijuana.

Employment protections:

No medical or recreational marijuana law requires employers to allow the possession of, use of, or impairment by marijuana at work. However, some of these laws have included certain protections for off-duty use. For example, South Dakota's new medical marijuana law grants qualifying registered patients the same rights given to individuals prescribed a pharmaceutical medication with respect to their interactions with their employer and workplace drug testing. However, these protections won't apply if they would conflict with an employer's obligations under federal law or the employer would lose federal funding or licensing as a result.

Note: Even in states where off-duty use isn't protected under the state's marijuana law, it could be protected by other state laws, such as laws prohibiting disability discrimination or laws protecting legal off-duty conduct. Consider consulting legal counsel to discuss employer rights and responsibilities in this area.

Local initiatives:

Voters in some municipalities approved ballot initiatives impacting the workplace. Employers should check their local results to determine if their business will be affected. For example, voters in Portland, Maine and Rockland, Maine approved measures to increase the minimum wage in those municipalities. Portland voters also approved a hazard pay requirement for employers to pay 1.5 times the minimum wage for any work performed during an emergency declared by the state or the municipality. Note that there is some disagreement about when this hazard pay requirement takes effect. Because city officials say the effective date is in 2022 but proponents of the measure claim it's December 2020, employers in Portland may want to discuss the hazard pay requirement with legal counsel.

Conclusion:

Employers should review any ballot measures passed in their jurisdiction to ensure compliance. Also watch for upcoming changes in law, regulations and guidance that may impact the workplace as a result of the election.