As Election Day approaches and despite the anticipated uptick in absentee ballots, 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 non-compliance.
Applicable voting laws vary by state. In certain states, employers must provide paid time off to vote, including for early voting or absentee ballot submission, while other state laws allow such time to be unpaid. Relevant 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 obligate employers to provide time off to employees who serve as election officials or to serve in an elected office.
Employers should review existing policies and practices immediately to ensure compliance with applicable laws and be prepared to address employee requests for time off prior to Election Day on November 3, 2020. Employers also should consider the impact of remote employees, which may allow greater flexibility in meeting relevant obligations, as well as how to address any technical posting requirements. Further, the anticipated increase in absentee ballot requests may mitigate some of the practical impact on employers as it relates to time off requests.
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.
California – Pursuant to California Election Code § 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 non-working time to vote is not entitled to additional time off to vote.
Colorado – Colorado Revised Statute §1-7-102 provides that eligible voters are entitled to be absent from work for up to 2 hours for the purpose of voting on Election Day, unless the employee has at least 3 non-working hours to vote while the polls are open.
Georgia – Georgia Code § 21-2-404 provides that eligible voters who do not have 2 consecutive non-working hours to vote while the polls are open are entitled to up to 2 hours off to vote.
Illinois – Under Illinois Statute 10 ILCS 5/17-15, an eligible voter is allowed time off for a period of up to 2 hours between the time of opening and closing of the polls.
New York – New York Election Law § 3-110 states that a registered voter who does not have 4 consecutive non-working hours to vote while the polls are open may take off so much working time as will enable the person to vote at any election without loss of pay for up to 2 hours.
Oklahoma – Pursuant to 26 Okl. St. § 7-101, a registered voter who does not have 3 consecutive non-working hours to vote is entitled to 2 hours of time off to vote on the date of the election or on a day on which in-person absentee voting is allowed by law, except that if the employee is at such a distance from the voting place that 2 hours would not provide sufficient time to cast a ballot, they must be provided with additional time.
Tennessee – Under Tennessee Code § 2-1-106, an eligible voter must be allowed reasonable time to vote, up to 3 hours, unless polls in the county where the employee is a resident are open for 3 hours before work or open for 3 hours after work.
Of course, in addition to state law, local laws should be reviewed for compliance with voting leave rights. Jackson Lewis attorneys are available to answer inquiries regarding the law in your locality and to help ensure you are in compliance.