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Everything an Employer Needs to Know About Voting Time Off in 2020: Q&A

Q: Am I required to provide employees with time off to vote?

A: While there is currently no federal law that requires employers to grant time off for employees to vote, 30 states have adopted laws governing voting leave. These laws typically address the amount of time that must be provided, whether it is paid or unpaid, how much notice employees should provide, and whether employees must show proof that they have voted.

Q: Am I required to pay employees that take time off to vote?

A: Of the states that require time off to vote, most require it to be paid. If not required by state or local law, non-exempt employees (commonly referred to as "hourly" employees), need not be paid for time spent voting. Regardless of your state requirement, however, exempt employees must be paid for time spent voting since the Fair Labor Standards Act (FLSA) generally prohibits deductions from an exempt employee's pay for partial day absences.

Q: What should I include in my written policy on voting leave?

A: A policy on voting leave should address the amount of time off allowed for voting, how much advance notice should be provided, whether the time will be paid or unpaid, and whether employees are required to show proof that they voted. The policy should include any other provisions stipulated by state or local law. Supervisors should be trained on the policy and on how to respond to voting leave requests.

Q: If my employee doesn't notify me in advance, can I deny their request for time off to vote?

A: Some states—including Alabama, Arizona, Colorado, Georgia, Illinois, Missouri, and Oklahoma—require employees to provide advance notice in order to take time off to vote. If you operate in one of these states, you may not institute a notice period that is greater than what is mandated under state law. In states that do not impose a notice requirement on employees, you may request reasonable notice, but employees may be entitled to voting leave even if they fail to provide notice.

Q: Can I force employees to vote during a specific timeframe during the workday?

A: It depends on the state. In some cases, employers may specify the hours that employees can be absent for voting purposes. For example, some states allow employers to limit voting leave to the beginning or the end of the employee's shift.

Q: How much time off am I required to give?

A: Some states have specific provisions detailing the amount of time off required, ranging from one to four hours. Other states simply call for "reasonable" or "sufficient" time off to vote. If your state requires you to provide a reasonable amount of time off to vote, you should use your best judgment, taking into account the hours polls are open, the time it takes for the employee to vote, including driving time to and from the polls, and the employee's work schedule. Q: My employee said their poll location is far from the office and therefore they need more time off to vote. Am I required to give them more time off for this purpose?

A: A few states require employers to allow enough time to vote based specifically on the distance to their polling location. For example, Nevada allows for one hour of paid time off if the distance is two miles or less, two hours if the distance is greater than two miles but less than 10 miles, and three hours if the distance is greater than 10 miles. In states that don't specifically account for distance, employers should still consider poll location as many states require “sufficient” time off to vote.

Q: Do I have to grant an employee time off for early voting?

A: Several states permit individuals to vote prior to Election Day. In these states, employers should treat early voting the same way as voting on Election Day. If an employer is required to grant time off to vote, they must do so for early voting as well.

Q: Can I require proof that the employee actually voted?

A: To prevent abuse, some employers request that employees provide proof that they voted, which is typically done in the form of a voter's receipt. In some states, pay for time spent voting may be contingent upon the employee's ability to provide such evidence. Employers should check their state law to ensure compliance when requiring proof of voting.

Q: Our state doesn't require that we offer time off to vote. Is it a best practice to still offer this time off to employees?

A: In states where there is no requirement to provide time off to vote, employers may want to consider providing time off voluntarily. When making this determination, take into account your business requirements, employees' schedules, and the hours the polls are open.

Q: What will happen if I refuse employees time off to vote?

A: Some states will issue fines if an employer does not adhere to the state laws that govern voting time off. For example, supervisors face fines of up to $2,500 if they block an employee from voting, and the company itself can be fined as much as $20,000. For states that do not enforce voting time off laws, refusing time off can tarnish your business’ reputation.

Q: We are in the process of auditing our posters and we are wondering if there is a poster requirement for voting leave?

A: In some states, employers are required to display a poster about voting leave prior to the election. In California, for example, employers must conspicuously post a notice outlining the provisions for taking voting leave at least 10 days before a statewide election. When developing your policy and procedures, be sure to also check applicable state law that may require you to post a notice regarding voting leave.

Q: I want to volunteer or work at the polls on Election Day. Can my employer stop me from doing that?

A. Even if your state has a law allowing you to vote, the time that you are permitted for voting is generally limited to a few hours--the time it takes most people to vote--rather than the entire day. Your employer may allow you to use a vacation day or personal leave for that purpose, but if you're planning to do this, it's recommended that you give advance notice. Use of sick leave and vacation leave are generally within your employer's discretion to approve or deny. Employees generally do not have a legal right to take leave whenever they want without advance notice or permission, even if leave has been accrued, so make sure your employer informed before you miss work.

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