By Elizabeth Bradley

With Election Day tomorrow, employers must be prepared to respond to employees’ request for time off to vote.  While there are no federal laws that require such leave, many states require that employees be provided with leave to vote.  Some states, such as California, Maryland and New York, require this leave to be paid.  Failing to comply with these requirements could result in financial penalties. 

As illustrated below, state requirements vary greatly with regard to whether the leave must be paid, when employees are eligible for the leave, the length of the permissible leave, and whether notice is required.  All employers should take a moment to review their state law requirements in advance of Tuesday. 

California:  Employees must be provided with enough time off that will enable them to vote; however, only 2 hours of the leave must be paid.  The leave must be at the beginning or end of the scheduled shift, unless otherwise mutually agreed.  Employees are eligible for paid time off for voting only if they do not have sufficient time outside of working hours to vote.  Employees must provide the employer with 2 days’ notice of the need for time off to vote.  Employers are required to post notice of the provisions of the voting law no fewer than 10 days prior to a statewide election.

Georgia: Employees may take up to 2 hours off to vote with reasonable notice to their employers.  The employer may specify the hours the employee may be absent to vote.  An employee is not entitled to time off if the employee’s workday begins at least 2 hours after the polls open or ends at least 2 hours before they close.  There is no requirement that employers pay employees for the time taken to vote. 

Maryland:  Employers must provide up to 2 hours of paid time off to vote if the employee is registered to vote and does not otherwise have 2 hours of continuous off-duty time during the time the polls are open.  Employees must provide the employer with proof that they voted or that they attempted to vote, which can be obtained from the election judges upon request.

Massachusetts:  Employees in manufacturing, mechanical and mercantile establishments are not permitted to work during the two-hour period after the polls open if the employee has submitted an application for absence for voting.

New York:  Employees who are registered to vote may take off the amount of time that, when added to voting time outside working hours, will allow enough time to vote if that employee does not have sufficient time outside of working hours to vote.  If an employee has 4 consecutive hours off while the polls are open, the employee has sufficient time outside of work to vote.  Up to 2 hours of the time taken to vote must be paid.  Time off to vote must be taken at either the beginning or end of the shift unless otherwise mutually agreed upon between the employee and employer.  Employees who need time off to vote are required to provide notice to the employer no more than 10 days or less than 2 days before the Election Day.  Not less than 10 days before every election, employers are required to post a notice setting forth the provisions for time-off-to-vote law in a conspicuous place.

Texas:  Employers cannot take any deductions from wages for an employee who takes time off to vote.  There are no provisions setting forth the amount of time off allowed but the Attorney General has construed the law as giving employers the right to designate hours, provided sufficient time is allowed.  Employees are not entitled to leave to vote if the polls are open for 2 consecutive hours outside the voter’s working hours. 

Virginia:  Virginia does not have a provision that requires leave for employees to vote.  However, employees who serve as an officer of election cannot be discharged or have any adverse employment action taken as a result of their absence from employment due to such service provided that the employee provided the employer with reasonable notice of the service.  In addition, any employee who servers for 4 or more hours, including travel time, as an officer of election, cannot be required to start any work shift that begins at or after 5 p.m. on the day of service or begins before 3 a.m. on the day following service.

In addition to the above, the following states have provisions governing voting leave:  Alabama, Alaska, Arizona, Arkansas, Colorado, Hawaii, Illinois, Iowa, Kansas, Kentucky, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Puerto Rico, South Dakota, Tennessee, Utah, Washington, West Virginia, Wisconsin, and Wyoming.  Interestingly, while the District of Columbia considers political affiliation to be a protected class, it does not require employers to provide their employees with time off to vote.