By Paul DeCamp, Esq. , Richard Greenberg, Esq., & Daniel J. Jacobs, Esq., of Jackson Lewis LLP.
As Election Day nears, employers should review their policies for compliance with state law requirements for providing employees with time off to vote. Some states have no such requirements, but others require all employers to provide employees with time off to vote and impose civil and/or criminal penalties for non-compliance.
State laws vary as to whether such time must be paid, the amount of notice, if any, employees must provide to an employer of their intention to vote and whether employers can designate the hours taken off to vote. Some jurisdictions even require postings to advise employees of voting leave rights.
Finally, some jurisdictions also obligate employers to provide employees time off to act as election officials and/or to serve in an elected office. Accordingly, employers should ensure they are prepared adequately to address employee requests for time off prior to Election Day so as not to violate any applicable laws and to minimize disruptions in the workplace.
The following is a sample of state requirements regarding voting time off:
Arizona – Arizona Revised Statute § 16-402 provides that an employee is entitled to leave if he or she has fewer than three (3) consecutive hours in which to vote between the opening of the polls and the beginning of his or her work shift or between the end of his or her regular work shift and the closing of the polls. An employee may be absent for a length of time at the beginning or end of his or her work shift that, when added to the time difference between work-shift hours and the opening/closing of the polls, totals three (3) consecutive hours.
- Notice: The employee must apply for leave prior to Election Day.
- Hours: The employer may specify the hours.
- Paid: Leave is paid.
California – California Election Code § 14000 provides that an employee is entitled to an amount of leave time that, when added to the voting time available to him or her outside of working hours, will enable him or her to vote. The employee is excluded if he or she has sufficient nonworking time to vote.
- Notice: The employee must provide notice two (2) working days in advance of the election if, on the third working day prior to the election, the employee knows or has reason to believe he or she will need time off in order to vote.
- Hours: Time must be taken at the beginning or end of the work shift, whichever allows the most free time for voting and the least time off from work, unless otherwise mutually agreed.
- Paid: No more than two (2) hours of the time taken off for voting shall be without loss of pay.
Colorado – Pursuant to Colorado Revised Statute §1-7-102, eligible voters are entitled to be absent from work for up to two (2) hours for the purpose of voting on Election Day unless the employee has three (3) or more non-working hours to vote while the polls are open.
- Hours: The employer may specify the hours of absence, but the hours must be at the beginning or end of the work shift, if the employee so requests.
- Paid: No more than two (2) hours.
Iowa – Iowa Code § 49.109 entitles employees who do not have three (3) consecutive non-working hours to vote while the polls are open to take time off to vote such that the time taken when added to the non-working time totals three (3) consecutive hours when the polls are open.
- Notice: The employee must provide written notice prior to Election Day.
- Hours: The employer may designate the hours.
- Paid: Employees must be paid for time taken during working hours.
Maryland – Maryland Election Law Code §10-315 states that every employer in the state must allow employees who claim to be registered voters to be absent from work for up to two (2) hours on Election Day to vote if the employee does not have two (2) consecutive non-working hours to vote while the polls are open.
- Paid: Employees must be paid for the up to two (2) hours of absence.
- Proof: Employees must provide proof of voting or attempt to vote on a form prescribed by the State Board.
Minnesota – Under Minnesota Statute § 204C.04, every employee who is eligible to vote in an election has the right to be absent from work for the time necessary to appear at the employee's polling place, cast a ballot, and return to work on the day of that election. Leave is paid.
New York – New York Election Law § 3-110 states that an employee is entitled to a sufficient amount of leave time that, when added to his or her available time outside of working hours, will enable him or her to vote. Four (4) hours is considered sufficient time. An employee is excluded from leave if he or she has four (4) consecutive hours in which to vote, either between the opening of the polls and the beginning of his or her work shift or the end of his or her work shift and the close of the polls.
- Notice: The employee must provide notice of leave at least two (2), but not more than ten (10), days prior to the election.
- Hours: The employer may specify the hours. Leave must be given at the beginning or end of the work shift, as the employer may designate, unless otherwise agreed.
- Paid: Not more than two (2) hours may be without loss of pay.
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