Election Day is Coming…Is Your Business Prepared?

This article was co-authored by Aly Lebowitz-Warmbrand, Chief Business Development Officer at Two Eleven Advisors.

While employees may assume they have an absolute right to take time off to vote, the reality is often more complex. Although there is no federal law requiring employers to give employees time off to vote, each state in the U.S. has different laws governing election leave, and many employers remain unaware of these nuances, leading to confusion and/or potential legal pitfalls. Here’s a closer look at what employers may not know about election leave laws and what they need to be prepared for!

Election Leave Laws Vary by State

State election leave laws differ from federal labor laws in that each state has its own specific regulations and requirements, whereas federal labor laws provide uniform guidance across all states. Employers must pay special attention to each state they operate in and what that specific state determines the scope of an employee’s right to take time off from work to vote.
For example:

• Some states only require employers to provide employees with an unpaid leave to vote, while other states mandate that employers to provide paid leave for voting.
• The amount of time an employee is entitled to can also vary by state. Some states provide up to two hours of leave, while others allow more or less.
• Notice requirements may differ. Some states mandate that employees provide advance notice to their employer for voting leave, while others do not.
• Posting requirements vary by state as well. Some states require employers to post the state’s election leave law poster in their company locations where employees can easily view it, e.g., in the lunch room, in the area where employees punch in/out for work, etc.

Take Away: Employers with operations in multiple states need to be especially vigilant about complying with each state’s unique laws, as a one-size-fits-all policy could lead to violations.

Local Regulations May Also Apply

In addition to state election leave laws, local municipalities may have their own rules regarding time off for voting. Cities or counties can sometimes enact more employee-friendly laws than state governments.

Take Away: Employers, particularly those in large metropolitan areas, should check both state and local regulations to ensure compliance across all levels.

Not Every Employee Ǫualifies for Election Leave

Many employers assume that all employees are entitled to time off for voting, but this is not always the case and there are exceptions. Some state laws only apply if an employee does not have sufficient time to vote outside of their working hours. For example, if the polls are open before or after the employee’s shift for a reasonable amount of time, they may not be eligible for election leave.

Take Away: It is important for employers to understand how this rule applies in all the states and municipalities where they operate or where their employees live, if remote. Employers should consider the employee’s schedule before granting or denying a request for voting leave.

“Reasonable Time” Is Open to the Employers Interpretation

Several state laws use the term “reasonable time” when identifying the amount of time that employees may take off to vote. But what constitutes “reasonable” can be vague and is often left up to interpretation. Employers need to consider factors such as:

• The distance between the employee’s workplace and their polling location.
• Potential wait times at the polling station.
• If an employer denies leave or provides insufficient time based on a misinterpretation of “reasonable,” they could face legal consequences.

Take Away: There are a variety of components when determining how much time is “reasonable” for employees to take off to vote. Employers should evaluate such elements carefully.

Employees Cannot Be Penalized for Taking Election Leave

One critical aspect of election leave laws that some employers may overlook is the prohibition against penalizing employees who take time off to vote. Even in states where unpaid leave is allowed, employers cannot dock employees’ pay for exercising their voting rights or retaliate against them for taking leave.

Penalties for violations of election leave laws can include fines, lawsuits, and most importantly, the damage to the company’s reputation. Employers must ensure that their managers and supervisors are aware of these protections to avoid any unlawful actions.

Take Away: Should an employee be eligible to take time off of work to vote, employers should tread carefully and ensure there is no retaliation related to such request.

Election Leave May Extend Beyond Voting

Some states extend election leave protections beyond just time off to vote. In certain jurisdictions, employees may also be entitled to time off for other election-related activities, such as:

• Serving as an election judge or poll worker.
• Running for public office or participating in political.

Take Away: Employers should consult state-specific election laws to determine whether additional forms of leave might apply to their employees.

State and Federal Differences in Absentee and Early Voting

While many states allow absentee or early voting, which might reduce the need for election leave, these options do not negate an employee’s right to request time off on Election Day itself if they choose to vote in person. Employers may assume that since absentee or early voting options exist, they can pressure employees into using these methods. This approach could backfire, especially if employees feel coerced or discouraged from voting on Election Day.

Take Away: Despite some states offering various ways to vote, such as absentee or early voting, employees may still be eligible to request and take voting leave on Election Day.

The Impact of Remote Work

With the rise of remote work, some employers may question whether election leave laws still apply if an employee works from home. In general, voting leave laws are based on the employee’s location and availability to vote, not their work environment.

Take Away: Remote employees are still subject to the voting laws of their state of residence, and employers should treat these requests with the same diligence as any other.

Best Practices and Next Steps for Employers

Given the complexities and variations of election leave laws, employers should take several steps to ensure compliance as they support their employees’ right to vote:

• Review State and Local Laws: Employers should familiarize themselves with the election leave laws in all the states and municipalities where they operate or where their employees live, if remote.
• Create a Clear Voting Leave Policy: A well-defined policy that outlines employees’ rights and obligations can help prevent confusion. Ensure that it accounts for state- specific nuances, including paid vs. unpaid leave, notice requirements, and time off allowances.
• Educate Managers/Supervisors: Ensuring that front-line managers and supervisors are aware of election leave laws is essential for avoiding unintentional violations.
• Avoid Retaliation: Even subtle actions, such as questioning an employee’s need for time off or denying a request based on an open interpretation of “reasonable time,” could be considered retaliation. Handle all requests for election leave respectfully and in accordance with the law.
• Communicate Early: Encouraging employees to plan ahead for voting, especially in states with absentee or early voting, can help manage workflow disruptions while still supporting employees’ rights to participate in elections.

Election leave laws are an important component of employee rights, yet many employers may not fully understand the intricacies of these laws. To avoid legal risks and foster a positive workplace culture, employers should prioritize compliance with both state and local regulations. By developing clear policies and educating their teams, employers can support civic engagement while maintaining operational efficiency during election season!

Co-authored by Janet Alden-Rahi, Founder at Two Eleven Advisors, & Aly Lebowitz-Warmbrand, Chief Business Development Officer at Two Eleven Advisors.