Less than a year after expanding its Election Law, New York State returns to its prior requirement that employers provide employees with two hours of paid voting leave.

As we previously advised, New York State amended Election Law § 3-110 in its FY 2019-20 budget to give employees an additional hour of paid time off from work in order to vote—an increase to three hours from two hours. That change had been in effect since April 12, 2019.

The State has again revised its Election Law in the FY 2020-21 budget, returning to its pre-2019 requirement of two hours of paid leave.¹ The New York State Board of Elections (the Board) has also published a Voting Leave Rights FAQs in conjunction with the 2020 amendments.

Two Hours of Paid Leave

Employers are not required to provide paid voting leave to employees who have four consecutive non-work hours between their shift and the opening or closing of the polls to vote but may wish to apply a paid-leave policy consistently across their workforce.

The Board's FAQs provide a helpful example of the four-hour "sufficient time to vote" window:

• If an employee is scheduled to work from 9 am to 5 pm, and the polls are open from 6 am to 9 pm, the employee is not eligible for paid time off to vote because the polls are open for four consecutive hours after the employee's shift ends at 5 pm.
• However, if an employee is scheduled to work from 9 am to 6 pm, then the employee is eligible for paid time off to vote since they have only three consecutive hours off at the beginning of their shift and end of their shift.

Effective April 3, 2020, if a registered voter does not have sufficient non-work time to vote on an election day (i.e., if they do not have four consecutive hours between the opening of the polls and the beginning of their shift or the end of their shift and the closing of the polls), they may take up to two hours of paid leave during work to vote.

Such an employee may take additional time off to vote, but employers need only pay them for two hours of voting leave. While employers may require that the leave be taken at the beginning or end of the employee's shift, they cannot require employees to use any form of earned leave time to vote.

Employee Notice Requirement

Employees requiring time off to vote must notify their employer at least two days but not more than 10 days before the election.

Employer Posting Requirement

Employers are still required to post a notice informing employees of the provisions of Election Law § 3-110 "conspicuously … where it can be seen as employees come or go to their place of work," for at least 10 working days before every election and until the polls close on an election day. The Board provides a model notice here.

In light of the significant number of employees working remotely due to COVID-19, employers should consider posting the notice via e-mail to their employees.

Next Steps

New York State employers are advised to have counsel review their time-off policies for compliance with the very latest New York State and New York City statutory leave entitlements. DWT attorneys are always available to assist.

FOOTNOTE

1 The amendments to Election Law § 3-110 appear at Part AAA (pp. 104-105) of the FY 2020-21 budget.

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