Many States Require Employers to Provide Time Off to Vote

Although some employees may choose to vote by mail during the COVID-19 pandemic, others will want to cast their ballots in person, and they may have the right to take time off from work to do so. Here's what employers need to know about voting-leave laws ahead of Election Day on Nov. 3.

"Voting by mail is widely available this year," said Alec Beck, an attorney with Barnes & Thornburg in Minneapolis. "Generally speaking, however, if an employee plans to vote in person, the protocols are no different than in any other situation."

He noted that states are taking steps to make voting in person safe through social distancing, mask requirements, and the availability of sanitizer and outdoor polling places.

Employers should understand the applicable state-law requirements before workers request leave to vote. They should know how much time employees are entitled to take off, when during the workday employees can take off without disrupting operations and whether that time will need to be paid, said Jill Vorobiev, an attorney with Reed Smith in Chicago.

"Employers may also consider providing information to employees about registering to vote by mail, which might help alleviate COVID-19 concerns about large numbers of employees going to polling places," Vorobiev said.

She cautioned, however, that employers should not say anything that could be construed as discouraging or penalizing employees from attending the polls to vote on Election Day—even if it's for COVID-19 reasons—as this could violate certain states' voting-leave laws.  

Check the Nuances of State Law

There is no federal law that entitles workers to time off, but many states offer voting leave to employees in certain circumstances.

Georgia's law, for example, states that employees who provide reasonable notice are entitled to two hours of leave to vote in "any municipal, county, state, or federal political party primary or election for which such employee is qualified and registered to vote," according to the statute. 

"Typically, employees can take a few hours off from work to vote while the polls are open," explained Amy Harwath, an attorney with Reed Smith in Chicago. Employees may not be entitled to time off to vote, however, if they have a certain number of hours outside of work available while the polls are open.

Wyoming's law, for example, entitles employees to one hour of paid voting leave if the employee has less than three consecutive nonworking hours to vote. 

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"It is very important to understand what your state law requires," said Anne-Marie Vercruysse Welch, an attorney with Clark Hill in Birmingham, Mich. 

Some state laws describe employee voting-leave rights in specific detail. Nevada's law defines "sufficient time to vote" based on the distance between the voter's place of employment and the designated polling place. Depending on the distance, employees get between one and three hours of paid leave if it would be difficult to get to the polls during nonworking hours. 

In Massachusetts, manufacturing, mechanical and mercantile employees must be allowed to vote during the first two hours that the polls are open, if they provide advance notice to their employer.

Some state laws, however, are less detailed. For example, the Arkansas law dictates that employers must "schedule the work hours of employees on election days so that each employee will have an opportunity to exercise the right of franchise."

Employees in Ohio must simply be given a "reasonable amount of time" to vote on Election Day.

North Dakota law "encourages" employers to establish voting-leave policies without mandating any specific rules.

Some states, such as California and New York, require employers to post a notice about the leave in advance of the election. 

In many states, employers may ask workers to give advance notice if they need time off and may require workers to take leave at a specific time of the workday. In some states, employers must provide time off for early voting or ballot submission. Under a new law in Washington, D.C., which provides paid time off, employers can designate certain hours for voting and may require workers to take time off during an early voting period rather than on Election Day. 

Most states prohibit employers from disciplining or firing an employee who takes time off from work to vote. In some states where leave is paid, employers might have the right to ask employees to prove they actually voted.

In states where the leave must be paid, Harwath said, employers should consult with legal counsel to make sure they are coding the leave properly and paying employees as required.

Tips for the Pandemic

If employees go to polling places to vote, they may be exposed to more people than they have been during most of the pandemic.

"Although polling places are likely to institute social distancing measures," Vorobiev said, "it nevertheless may be a good idea for employers to remind employees about the company's COVID-19 policies, procedures and expectations, so that employees are mindful when returning to work."

However, employers should not attempt to influence how employees vote, as some states have laws against this. "Employers should be careful in their communications with employees about voting leave that they do not say anything that could be construed as an attempt to influence employees' votes toward a particular candidate or issue," Welch cautioned.

Beck noted that employees who choose to vote in person will undoubtedly need a bit more flexibility, and employers should consider providing it, even where it's not required. "As with everything else this year, some flexibility is probably a good idea."