With the U.S. election season upon us, employers should be aware of state laws governing whether or not they are obligated to allow employees time off from work, paid or unpaid, in order to vote in the upcoming election. Voting leave time varies by employee classification and state law.

To begin with, employers should remember that regardless of state law rules, exempt employees must be paid for time spent voting during working hours.

States, including New York, California, Illinois, Massachusetts and Maryland, require employers to provide voting leave for employees who would be otherwise unable to vote or significantly inconvenienced due to their work schedule.

New York employers must allow employees to take up to two hours of paid time off, at the beginning or end of their shift, to vote if they do not have sufficient time outside of their work hours to vote.

  • "Sufficient time" is defined as four consecutive hours either between the opening of the polls and the beginning of an employee's shift or between the end of an employee's shift and the closing of the polls.
  • Employees must notify employers of the need for time off not more than 10 days and not less than two days before Election Day.
  • New York employers are required to post a notice setting forth these rights at least 10 days prior to Election Day. Employers should post the notice in a conspicuous place promptly, if they have not already done so. This notice can be removed after the polls close on Election Day. 

In California, employees may take up to two hours off without loss of pay if they do not have time to vote outside of their working hours. Employees must provide notice two working days prior to the election if, on the third working day before the election, they know or have reason to know they will need leave. Employees who have sufficient non-working time in which to vote are excluded. 

Illinois and Maryland employers must also permit two hours of paid leave if an employee's shift begins less than two hours after polls open, or ends less than two hours before polls close. In Illinois, employers may specify the hours during which an employee may be absent.

In Massachusetts, there is no voting leave law covering employers generally. The Massachusetts voting leave law is applicable only to employers with mercantile, manufacturing and mechanical establishments and provides that no employee of a covered employer is required to work during the first two hours after the polls open if the employee applied for a leave of absence during this period.

In the District of Columbia and states, such as Pennsylvania, New Jersey and Florida, state law does not mandate that employers provide employees with voting leave. In these states, however, as an employee relations initiative, employers may consider offering schedule flexibility on Election Day (i.e., starting early or staying later).

What This Means for Employers

During this significant time for the country, employers should review employee classifications and state law leave rules in their places of operation, as well as consider human resources policies in managing employee time off for voting purposes on Election Day. Employers may also want to educate managers and supervisors on employee rights in this regard.

If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.