Accommodating Employee Requests To Vote In An Unprecedented Election

Vinson & Elkins LLP

Vinson & Elkins LLP

While we are not willing to predict the outcome of next Tuesday’s election, we think that there is fair chance that 2020 will shatter voter participation records based on the number of early votes that have already been cast. In many places around the country, voters have waited in lines for hours in order to cast their votes. Employers should not be surprised if more employees than usual ask for time off to vote on Election Day.

How should employers respond to employee requests for time off to vote on Election Day? First and foremost, you should make sure that you comply with the law of the states in which you have employees. While this can pose a challenge to employers who have employees in multiple states, most state laws that require employers to provide time off to vote are similar to one another. It should not be too difficult for those employers to draft a single policy if they would rather not have different policies for each state.

Currently, thirty states have laws that require employers to provide employees with some time off to vote. In most states that require employers to provide leave to vote, the leave is limited to two or three hours. In many of these states, however, leave does not have to be provided if the employees have two or three consecutive hours before or after their shift during which the polls are still open. A great majority of the states that require employers to provide some leave for voting also require the employer to pay the employee for that time, although in a few states employers are only required to provide unpaid leave.

Can an employer ask the employee to provide proof that they actually voted? In most states, the answer is “No.” If an employer suspects that the employee has lied about having voted, the records of who is registered and who has voted are publicly available in many states. In a few states, employees are required to provide some advance notice, usually of one day. In California, employers are also required to post a notice no less than 10 days before the election explaining employees’ right to time off to vote.

Even if an employer is not legally required to provide its employees with time off to vote, there may be reasons why an employer may decide that it is a worthwhile benefit to provide to employees. In fact, some well-known employers have recently declared Election Day a holiday for all of their employees. Other employers have encouraged employees to work or volunteer at the polls, either by giving them additional leave or allowing them to use a day of vacation time. No doubt, many of these companies have concluded that these actions can only enhance their image of being good corporate citizens in their communities.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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