What Obligations do Employers have to Provide Employees with Time off to Vote?

Nate Gibson, Maura Healey, and Ellen Gibson

From JDSupra, Josh Hughes reviews employers’ oblgiations to provide time off for employees to vote. Josh writes:

With the 2022 midterm elections fast approaching, and sky-high interest in voting this election cycle, more employers than ever may be considering their obligations to provide employees time off to vote.  As it stands, 29 states require employers to provide some kind of voting leave.  But with the rise in popularity of mail and early voting during the pandemic taking some of the attention off of Election Day itself, what is an employer’s obligation to accommodate an employee’s democratic participation when polls are open?

Voting and election leave isn’t a blank check to take off Election Day completely, and employers aren’t obligated to provide a full day of leave. In many states, most employers won’t actually have to provide any leave at all.

A majority of states require voting leave, however. In these states, employers must provide an employee leave to vote unless the employee has a certain minimum amount of time outside of the employee’s working hours when the polls are open.  In Arizona, for example, polling places are open on November 8 from 6 a.m. to 7 p.m.  Arizona law provides that employers must provide eligible employees time off to vote unless the employee has three consecutive hours before or after work to vote.  That means an employee with a 9-to-5 schedule wouldn’t be entitled to voting leave because they have three hours of polling time to vote before work, but an employee who is scheduled for a twelve hour shift of 7 a.m. to 7 p.m. would be entitled to leave.  Many states take a similar approach, and it is most common to see laws that require minimums of either two or three hours of non-working time required to be available before leave must be granted.  This is not a hard-and-fast rule, however, as some states like Arkansas require employers to schedule employees so that the employees are able to get to the polls on Election Day without the need to take leave at all.

Does time off to vote have to be paid?

Another question that employers frequently consider is whether the time must be paid or unpaid.  Of the 29 states with a voting leave law, 21 require the leave to be paid. The remainder of states either have no provision in their law—like all mail-voting Washington State—or explicitly do not require the leave to be paid, like Connecticut.  Illinois takes a third approach that doesn’t explicitly require paid election leave, but prohibits employers from imposing a penalty on employees—including a reduction in compensation—for taking voting leave.  In Oklahoma, an employee must present proof of voting for the leave to be paid at all.

How much notice must employees give?

Another wrinkle that employers must grapple with state-to-state is the amount of notice an employee is required to give.  Sometimes, whether an employee gives enough notice can have major consequences: Nebraska is one state that provides paid voting leave only if the employee applies at least the day before the election.  Other provisions in the states range from “reasonable notice,” to two working days, to the day before, to no notice required.

What should employers do?

Faced with dozens of different state laws, what’s an employer to do?  Companies with employees who work largely in one state only need to conform to one set of election leave laws. But for national employers, the question becomes arguably more difficult.  Time To Vote is a nonpartisan, business-led initiative to help ensure employees across America have adequate time and information about voting.  With more than 2,000 corporate signatories, Time To Vote provides resources to companies who pledge that they will allow their employees time to cast their ballots. National corporations can also choose to provide voting and election leave to employees that goes in excess of any one state’s law.

On the other hand, some employers don’t want to talk about elections.  It’s understandable why employers may want to steer clear of voting discussions entirely.  But at its core, voting is an expression of commitment to a community, and whether employers talk about it or not, employees will be thinking about their vote and their community.  Employers can signal respect for those choices and embrace the community-building aspect of voting by affirmatively communicating nonpartisan and informative information about elections.

The list of states that require voting leave, a summary of the requirement, and links for more information are set out below.

Massachusetts: Employers may not deny an employee’s request for voting leave during the first two hours after the polls open if the employee is eligible to vote.  No requirement that leave be paid.

For more information, see Vote 411, a non-partisan election information clearinghouse founded by the League of Women Voters.

Source: What Obligations do Employers have to Provide Employees with Time off to Vote? | Dorsey & Whitney LLP – JDSupra

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