On Tuesday, November 3, 2020, Americans will head to the polls to exercise their right to vote in the presidential election. Many employers are unaware of state voting leave laws, which we anticipate will be heavily relied upon this year given the challenges presented by the pandemic. Although federal law does not require giving employees time off to vote, a majority of states and some local ordinances mandate voting leave time, with some states, such as New York State, requiring that the leave be paid up to a certain amount of hours.
In New York, Election Law states that employees are generally eligible for up to two hours of paid time off to vote if they do not have sufficient time outside working hours. An employee is deemed to have sufficient time to vote if an employee has four consecutive hours to vote either from the opening of the polls to the beginning of their work shift, or four consecutive hours between the end of a working shift and the closing of the polls. According to guidance issued by the New York State Board of Elections, while two hours is the maximum paid time off allowed under the law, the amount of paid time off required for an employee to vote must be determined on a case-by-case basis as waiting times at polling places, traffic conditions, and other factors may vary. If an employee requires more than two hours to vote, he or she may take additional unpaid time to vote.
New York requires that the notice be posted at least 10 working days before the election. Employers must post a notice in a conspicuous location regarding employees’ voting leave rights at least 10 days before every election and leave the notice up until the close of polls on Election Day. This mandatory notice can be accessed on New York’s election site here. Employees who are working from home or who do not report to the workplace regularly should be provided with these notices electronically.
Employers in states with early voting may encourage employees to take advantage of that option by offering the same time off benefit to lower the number of employees out on Election Day. The availability of early voting and absentee ballots, however, does not change an employee’s right to vote on Election Day if that is their preference.
Employees may be required to provide between 2 and 10 days’ notice of their need for voting leave. Employers may require that the employee take voting leave at the beginning or end of their shift.