Dear Littler: What are our voting leave obligations?

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Dear Littler: We are a nationwide company with some employees working at our brick-and-mortar locations and some employees working remotely due to the pandemic. With the election coming up, employees in various states are asking about time off to vote. I thought everyone was voting by mail this year? What leave must we provide?

Voting in Ventura

Dear Voting in Ventura,

Wait, there’s an election coming? Kidding! November 3rd is fast approaching, so it’s wise to plan ahead. This year, employers and employees face unprecedented challenges due to COVID-19, so being proactive about Election Day may help ease staffing uncertainties and confusion about leave obligations.

The majority of states (roughly 30) give employees the right to take time off from work to vote or to serve as an election worker with varying maximum or no specified required hours. Many states also require that an employer provide paid leave for the time needed to vote. In some states, employers must allow an employee to take the entire day off if the employee intends to volunteer to help administer the election. Although many people may choose the absentee or mail-in ballot route this year, state voting leave laws remain, so employers should familiarize themselves with their nuances.

I will discuss some of the state-specific issues in voting leave law below. However, please be sure to consult the applicable laws in every state and locality where your employees work to ensure that your company is in compliance with state and local requirements—specifically and importantly, in terms of the number of hours that must be offered and whether or not the leave must be paid.

States With Mandated Voting Leave

Most states require employers to grant some time off during the workday for employees to vote. Typically, these laws provide employees between one and four consecutive hours to hit the polls. Mandatory voting leave is commonly conditioned on the employee’s inability to vote outside of work due to conflicts between polling hours and their work schedule.  In other words, if the employee can find time to vote outside of their work schedule, granting voting leave may not be required.

In some states, employees who need time off to vote must request the time off before Election Day. Indeed, more than half of the states legislating voting leave require employees to provide their employer some sort of notice. Of course, these notice requirements vary from state to state. Some state laws simply require any form of notice before Election Day, while others stipulate that the request be in writing and provided at least a specified number of days prior to Election Day. When a leave requirement is triggered, states often allow employers to specify the time that employees are permitted to be absent (e.g., the first or last hour of the shift). In more than 20 states, the hours set aside for voting leave are paid time for the employee.1

Notably, a few states require paid leave only if the employee actually votes during the leave. For example, Maryland, Oklahoma, Missouri, and Wyoming require employees taking voting leave to provide their employer proof that they voted. In some cases, West Virginia employers can deduct the wages otherwise payable for the time off to vote if the employee does not actually vote. Kentucky does not require employers to provide paid time off for voting; however, an employee who takes time off and does not vote may be subject to disciplinary action. These points are something to keep in mind as more employees may be using absentee or mail-in voting options this year.

States Without Mandated Voting Leave

A number of states do not require employers to provide voting leave.2 However, some of the states without voting leave laws “encourage” employers to provide voting leave for their employees. For example, North Dakota does not mandate voting leave. Yet, North Dakota encourages employers to allow employees time off to vote if their work schedules conflict with polling hours. While Virginia similarly does not have a voting leave mandate, it recently enacted a law designating Election Day as a state holiday.

Employers in jurisdictions that do not require voting leave should nonetheless review their handbooks and policies to see if they offer voting or other applicable leave (or have done so in the past) either as a courtesy to employees or as a contractual matter. If so, those employers will want to ensure that requests for such leaves are reviewed and approved fairly and consistently regardless of any employee’s particular role in the organization, political persuasion, or protected classification. In addition, employers should be cognizant of the polling hours in their areas as well as the availability of early voting. Depending on the circumstances, some flexibility may be appropriate for employees who seek time off to vote even if the employer is not required to provide voting leave.

Voting Early or By Mail

Alternatively, employers in jurisdictions that are not required to offer voting leave and cannot or prefer not to allow employee requests for voting leave may remind employees about their ability to cast their ballots early or via mail, where and when available. The CDC even suggests as a COVID-19 precaution that individuals consider voting alternatives in their jurisdictions to minimize contact with other people. The good news is most states allow voting by mail, which can be done weeks ahead of time in many jurisdictions. In some states, ballots or ballot applications are automatically mailed to voters. In other states, all voters have the option of voting by mail, but they must affirmatively request an absentee ballot. In a handful of other states, voters can obtain an absentee ballot, but only if they have a valid reason for not being able to vote in person. In those states, the pandemic alone does not qualify as such a reason. 

In addition, many states allow in-person early voting, although locations and conditions vary. Employers may encourage employees to see if early voting options are available to them. The U.S. Election Assistance Commission has applicable information by state.3 Note that employers are free to encourage voting, but not for a particular candidate or cause. In addition, federal law prohibits employers from providing financial incentives for voting or registering to vote when a federal candidate is on the ballot. So, while employers can send a company-wide memo letting employees know about early or absentee voting and can provide employees with time off to vote, they cannot condition rewards or benefits on their voting choices.

Election Worker Leave

Many employees plan not only to vote on Election Day, but also to volunteer as election judges, precinct officials, and the like. The need for volunteers this Election Day may be greater than normal, as voter turnout is expected to be high, and many past volunteers may opt out this year because of coronavirus fears.

Several states, such as Alabama, Delaware, Illinois, Kentucky, Nebraska, Ohio, Tennessee, and Wisconsin, require employers to give employees time off (including up to an entire day) to perform this type of public service under certain circumstances. Election workers are typically required to give employers advance notice of their absence. Moreover, while some states like Nebraska require employers to give paid leave for election workers, this leave is often unpaid. However, employees generally cannot be penalized for missing work for this purpose. In Illinois and Kentucky, for example, an employer cannot penalize an employee for serving as an election judge or official, respectively, although time taken off to perform those roles is unpaid. In Wisconsin, the voting statute stipulates that serving as an election official cannot affect an employee’s fringe benefits or seniority level. While Virginia does not have a statute requiring leave for such volunteers, employers in the Commonwealth may not discharge, or take any adverse action against, an employee who needs time off to serve as an election officer.

So What Now?

With about a month left to go, now is the time to review your company’s obligations on a state-by-state and local basis for every jurisdiction where you have employees. This might include home locations for your teleworking employees. It would also be prudent to research and remind employees of early voting options and polling hours in relevant locations. Finally, managers should begin considering how to handle and/or schedule employee requests for time off, particularly in those states that mandate voting or election worker leave.

 

Footnotes

1 Alaska, Arizona, California, Colorado, District of Columbia, Illinois, Iowa, Kansas, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.

2 Connecticut, Delaware, Florida, Hawaii, Idaho, Indiana, Louisiana, Maine, Michigan, Mississippi, Montana, New Hampshire, New Jersey, North Carolina, North Dakota, Oregon, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia, and Washington do not require voting leave.

3 Another user-friendly voting guide can be found on FiveThirtyEight.com: https://projects.fivethirtyeight.com/how-to-vote-2020/.

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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