Election Day Is Coming. What Are Your Obligations as an Employer?

With Election Day fast approaching, employers should ensure they are in compliance with state law requirements related to employee voting rights. While not all states impose requirements on employers, some impose time-off obligations and notice requirements with the possibility of criminal or civil penalties for noncompliance.

Applicable voting laws vary by state. Some state laws require paid time off to vote, while other state laws do not mandate such time off be paid. Laws also vary as to the amount of time that must be provided and whether an employer can dictate which hours are taken off, such as at the start or end of the employee's workday. Further, some jurisdictions require postings to advise employees of their voting-leave rights. Additionally, some jurisdictions also require employers to provide time off to employees who serve as election officials or to serve in an elected office.

Employers should immediately review existing policies and practices to ensure compliance with applicable laws and be prepared to address employee requests for time off prior to Election Day on Nov. 5.

The following is a sampling of state law requirements regarding employee voting time off. Of particular note is the New York requirement that became effective this year. Of course, in addition to state law, local laws should be reviewed for compliance with voting-leave rights.

Arizona

Arizona Revised Statute Section 16-402 provides that employees have the right to be absent from work if they have fewer than three consecutive hours in which to vote between the opening of the polls and the beginning of their work shift or between the end of their regular work shift and the closing of the polls. An employee may be absent for a length of time at the beginning or end of the his or her work shift that, when added to the time difference between work-shift hours and the opening or closing of the polls, totals three consecutive hours.

Notice: The employee must apply for leave prior to Election Day.

Hours: The employer may specify the hours.

Payment: Leave is paid.

California 

Pursuant to California Election Code Section 14000, employees are entitled to an amount of time off to vote that, when added to the voting time otherwise available to the employee outside of working hours, will enable the employee to vote. An employee with sufficient nonworking time to vote is not entitled to additional time off to vote.

Notice: Two working days of advance notice prior to the election is required if, on the third working day prior to the election, the employee knows or has reason to believe he or she will need time off in order to vote.

Hours: Time may be taken only at the beginning or end of the work shift, whichever allows the greatest amount of free time for voting and least time off from work, unless otherwise mutually agreed.

Payment: No more than two hours of the time taken off for voting may be without loss of pay.

Posting requirement: Employers must also post a notice of voting-time requirements at least 10 days before an election. Employers can satisfy this requirement by posting a copy of the Time Off to Vote notice.

Colorado

Colorado Revised Statute Section 1-7-102 provides that eligible voters are entitled to be absent from work for up to two hours for the purpose of voting on Election Day unless the employee has at least three nonworking hours to vote while the polls are open.

Notice: The employee must apply for leave prior to Election Day.

Hours: The employer may specify the hours of absence, but the hours must be at the beginning or end of the work shift, if the employee so requests.

Payment: No more than two hours.

Illinois

Under Illinois Statute 10 ILCS 5/17-15, an eligible voter is allowed time off for a period of up to two hours between the time of opening and closing of the polls. An employer may specify the hours during which the employee may be absent, except that the employer must permit a two-hour absence during working hours if the employee's working hours begin less than two hours after opening of the polls and end less than two hours before closing of the polls.

Notice: Employees must provide notice prior to Election Day.

Payment: Employers cannot reduce employees' pay for voting-time leave.

Maryland

Maryland Election Law Code Section 10-315 states that every employer in the state must allow employees who claim to be registered voters to be absent from work for up to two hours on Election Day to vote if the employee does not have two consecutive nonworking hours to vote while the polls are open.

Payment: Employees must be paid for up to two hours of absence.

Proof: Employees must provide proof of voting or attempt to vote on a form prescribed by the Maryland State Board of Elections.

New York

New York Election Law Secion 3-110 states that a registered voter may, without loss of pay for up to three hours, take off so much working time as will enable the person to vote at any election.

Notice: The employee must provide notice of leave at least two working days prior to the election.

Hours: The employer may specify the hours. Leave must be given at the beginning or end of the work shift, as the employer may designate, unless otherwise agreed.

Payment: Not more than three hours may be without loss of pay.

Posting requirement: Employers must also conspicuously post a notice for employees about the law not less than 10 working days before every election. The notice must be kept posted until the close of the polls on Election Day.

Tennessee

Under Tennessee Code Section 2-1-106, an eligible voter must be allowed reasonable time to vote, up to three hours, unless polls in the county where the employee is a resident are open for three hours before work or open for three hours after work. An employer may specify the hours during which the employee may be absent.

Notice: Employees must apply for voting leave before noon the day before the election.

Payment: Employers cannot reduce pay because employees take voting-time leave.

Richard I. Greenberg, Daniel J. Jacobs and John A. Snyder are attorneys with Jackson Lewis in New York City. © 2019 Jackson Lewis. All rights reserved. Reposted with permission.