Election Day 2020, November 3rd, is now less than a month away. Employers must be aware of state laws, contractual obligations and Employer policies dealing with employee time off to vote to avoid inadvertent violation of employee rights. Recent state laws expanding the ability to vote by mail add a layer of consideration. Right to vote by mail laws are permissive, not mandatory. Accordingly, the expanded ability to vote by mail does not curtail the right of employees to take time off to vote in person. In states that do not require time off to vote, Employers should consult collective bargaining agreements and time off policies to determine if they create that right and whether the right is affected by an enlarged ability to vote by mail.
Laws in 30 states grant employees time off work to vote. Generally, time off is with pay but only when the employee’s regular work hours leave insufficient time to vote during off-duty hours. Where employees have statutory, contractual or policy rights to time off to vote, Employers should consider the need to schedule time for each employee to vote to avoid gaps in work coverage. In our region, only Maryland and New York require Employers to grant paid leave to allow employees to vote. Delaware, New Jersey and Pennsylvania have no laws requiring Employers to grant either paid or unpaid leave for that purpose.
In Maryland, an employee is permitted up to two hours off work if the employee does not have two continuous non-working hours during which polls are open. Employers must pay employees for up to two hours of absence from work for the purpose of voting but may require proof an employee has voted.
In New York, employees must provide not less than two days’ notice to the Employer of the need for time off to vote. Assuming compliance with that obligation, employees are entitled to two hours of paid leave unless the employee has at least four consecutive off-duty hours within which to vote. Employers may schedule the time off to vote but, unless otherwise agreed to by the employee, the time off must be at the beginning or end of the employee’s shift. Critically, for ten days prior to election day, Employers must post a notice of employees’ right to take paid time off to vote.
Where neither a state law, collective bargaining agreement nor Employer time-off policy requires an Employer to give time off to vote, Employers should consider voluntarily doing so, paid or unpaid. Aside from encouraging performance of the civic duty and privilege of voting, permitting employees to do so also enables the Employer to set terms for exercising the privilege, such as requiring advance notice, and scheduling the time off so as to not interfere, or interfere as little as possible, with normal work routine rather than having employees take the time without notice.