Employer Obligations Regarding Election Day Leave

Legal Alert

October 24, 2018

VotingLegalAlert

With Election Day fast approaching, now is the time for employers to ensure they are in compliance with applicable laws relating to voting leave for employees. While there is no federal law governing voting leave, many state laws require employers to provide some form of leave for employees to vote. These laws are typically dependent upon whether or not employees are able to vote outside of working hours, but otherwise vary greatly from state to state. A state-by-state overview of voting leave laws may be accessed here.

Several states, such as New York, California, and Colorado, require employers to provide paid time off for employees to vote. For example, New York Election Law § 3-110 provides that if employees do not have sufficient time to vote in their normal workday, employers must provide up to two hours of paid leave either at the beginning or end of the workday to permit employees to vote. This leave, however, is conditioned upon the employees’ compliance with the notice requirement contained in the law, which requires employees to notify their employer at least two working days before the election that they will require time off to vote.

Other states, such as Georgia, Arkansas, and Kentucky, require employers to provide voting leave, but do not require such leave to be paid. For example, in Georgia, O.C.G.A. § 21-2-404 requires employers to permit employees to take “any necessary time off” to vote, provided, however, such time does not exceed two hours. This provision only applies if employees do not have a two-hour block of time at the beginning or end of their workday to vote, and is also conditioned upon employees providing “reasonable notice” to their employers.

By contrast, many states, including Florida, Connecticut, Virginia, New Jersey, and Washington, do not have state laws governing voting leave. While it is illegal in Florida for an employer to discharge an employee for voting or failing to vote, Florida law does not require employers to provide leave for voting. Similarly, North Dakota does not require employers to provide voting leave, but has a state law that encourages employers to establish programs to permit employees to be absent for the purpose of voting.

As November 6^th draws near, employers should examine their policies to ensure they are in compliance with their state’s voting leave requirements, if any. Employers should likewise be cognizant of any city or municipal ordinances that may require voting leave for employees. From an implementation standpoint, employers should begin considering voting hours and locations, as well as necessary scheduling adjustments. If you have any questions regarding your obligations relating to voting leave, please contact your labor and employment counsel at Smith, Gambrell & Russell, LLP.