Multistate Monday: Mastering Voting Leave Laws—Is Your Company Ready for Election Day?                

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Dee Anna Hays: Hello, everyone, and welcome to another installment of Multistate Monday. This is Ogletree’s podcast, where we talk about issues that are important for multistate employers to consider, or employers that are in multiple jurisdictions. This is meant to be informational and as a guide to key items that you may want to look out for, but of course, it’s not individual legal advice. We also love to hear from you, so please get in touch with us, send us comments if there are topics that you’d like to hear about.

But today I’m very excited because we are talking about a timely topic of voting leave laws. We have Susan Gorey on with us today. She is a member of the Multistate Advice and Counseling Practice Group in our Indianapolis office. And I am Dee Anna Hays. I am a shareholder in Ogletree’s Tampa office, and I’m one of the co-chairs of Multistate Group here at Ogletree. Susan, want to say hello to everyone and introduce yourself?

Susan Gorey: Yes. Hi, everybody. It’s so great to be back with you, recording a podcast. I’m excited here today since we have been getting multiple questions on voting and election leave laws, and I thought that it’d be great to jump on a podcast with you and enlighten everybody as to how this is not only about voting leave laws, but a whole host of other things that might come into play.

Dee Anna Hays: Yes, absolutely. It seems like with the election drawing near, there are questions about voting leave. There are also questions about regulating political speech in the workplace and that kind of thing. We could probably talk about all of those issues for hours, but we really wanted to hone in on the voting leave here to start with. Susan, what are the three key issues to look out for when you’re considering voting and election leave?

Susan Gorey: Well, basically, I think there are three. One is, some states require posted notices. The second is the leave itself and whether a state even has protected leave for voting or election officials, and if it does, whether it’s paid or unpaid. The third is requests for leave and whether or not an employee has to make a request. And if so, is it in writing, and how far in advance the request must be made?

Dee Anna Hays: Interesting. When it comes to the first point that you made with notices, are there dates that are important for employers to be aware of regarding when the notices should be put out?

Susan Gorey: Yes. There are three states or two states and the District of Columbia that require posted notices for employers. California and New York are the two states where the notice must be posted at least 10 days before the election. If my math is right, I believe this year, the employers in those two states must have it posted by October 26. And then District of Columbia, they also have a posted notice requirement, and it must be posted at least 60 days prior to the election. This is regarding the main general election. There were a few states that have requirements for smaller elections, but just as a little footnote, we’re talking about the general election this year.

Dee Anna Hays: Understood. And then when it comes to the leaves themselves, it’s my understanding, Susan, that some states don’t have a specific voting and election leave law. Other states kind of fit in the bucket of employees can be asked to vote outside of working hours as long as there are election facilities open during those times for them. And then other states may require that employees be given a certain amount of hours off to vote. Is that correct, Susan?

Susan Gorey: Yeah, pretty much. I mean, Washington, by example, and Hawaii, they actually do all of their voting by mail. So Hawaii and Washington State do not have voting leave laws because of that. Connecticut, I believe, just sunset their election leave law, and that is because I believe they have two weeks in which to vote. And that’s one of the examples that would fall into that bucket. And then other states just don’t have voting leave laws such as Florida, Indiana, Louisiana, and a whole host of others.

Dee Anna Hays: Okay. Out of the states that require time off to vote, some of that would be paid, and then some states actually have a paid leave requirement. Is that correct?

Susan Gorey: Yes. There are a few states, basically a handful only of states, that are unpaid voting leave laws. Those range from Alabama, Arkansas, Georgia, Kentucky, Massachusetts, Ohio, and Wisconsin. Interestingly, Alabama requires that you only provide one hour. Georgia, you can require the leave, the unpaid leave to be used on a day designated for early in-person voting or on election day. So as is typical with many of the multistate issues that you and I deal with on a daily basis, what works in one state doesn’t work in another state.

Dee Anna Hays: How many states, Susan, require paid voting leave?

Susan Gorey: Surprisingly, there are a lot of states that require paid voting leave. For example, Alaska requires as much time as an employee needs to vote, and it must be paid. Arizona is another one that requires through up to three hours of paid voting leave. And then we have, of course, our friend, California, and then its sister, Colorado, and then the District of Columbia. And then it goes down from Illinois and Iowa and Kansas, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.

Dee Anna Hays: That is a lot of states. It’s more, I think, than many people would have expected.

Susan Gorey: Yes, and I was surprised too.

Dee Anna Hays: And then out of those states, I know some of them don’t specify a time limit on the paid leave, but generally most of them, it seems, require between one hour and three hours from what I’ve seen. Is that consistent with your understanding?

Susan Gorey: Yes, and there are also a couple of unique circumstances that are too detailed for a podcast. But if any of our clients are listening in their portal subscribers, they can jump on and get the details. But there are certain things where if an employee has X amount of hours before or after their working time and the polls are still open, then paid leave is not required. So it’s a “If this, then X.” But for the most part, employers need to be aware that there is paid leave required.

Dee Anna Hays: Mm-hmm. Understood. If you’re a national employer that has employees in almost every state, it seems like a lot of clients these days are looking for policies, even if they have to be more generous than they otherwise would be required to be in certain states that are administratively easy in the sense that they just go ahead and apply the most generous allotment across the board. It seems like looking at this, that you would be safe to look to that three hours with a caveat along the lines of, unless otherwise required by state or local law, that would be the catch off for those few states that don’t specifically have a time limit or that might have variations depending on, for instance, the travel distance to the poll place.

Susan Gorey: Yeah, they can do that because that would certainly be the most generous. I know some employers such as health care or other employers that need coverage that may not work. Interestingly enough, one of the issues, the last issue around voting and election leave law is the notice and whether or not the employer can designate what hours the employees can go to vote. So there are some states, for example, in Iowa, a request to vote must be in writing. And in New York, ironically, you have to provide notice not 10 days before the elections, but no less than two days prior. Some states don’t require any. So it’s really a patchwork of laws.

Dee Anna Hays: Mm-hmm. Understood. Certainly, you could instead address any specific voting leave requirements for a state in a state supplement or addendum to an employee handbook so that you wouldn’t have to approach it universally if that might not be the best approach for your company.

Susan Gorey: Right. Absolutely.

Dee Anna Hays: It’s interesting that there is no federal law that requires time off to vote. Sometimes we get that question as well.

Susan Gorey: Yes, yes, especially because of how important they’ve all become, and especially with the last few elections where they expected very heavy turnout. I believe from the last election, if my memory serves me correctly, some of the states ended up keeping their polls open an hour or two later.

Dee Anna Hays: Interesting.

Susan Gorey: Because of the heavy turnout.

Dee Anna Hays: I know, too, if you’re in a state like Florida like me, that doesn’t have specific time off to vote requirements. Other things you can also look at are voting by mail, even if it’s not mandated by your state. Certainly, in Florida, it allows voting by mail. Also, early voting can be helpful as well.

Susan Gorey: Yes, early voting.

Dee Anna Hays: Even getting that information out to your employees, like, “Hey, here’s the information on early voting,” and share that with them because it might encourage them to go ahead and take advantage.

Susan Gorey: Yes, which would also help the employer in the end if they need coverage and can’t afford to have everybody gone on election day, for example. And then to that point that I wanted to also raise just as something that’s of interest is, some states do not have voting leave laws, but they do have leave laws for election officials.

Dee Anna Hays: Oh, interesting.

Susan Gorey: For example, Tennessee is one that does have paid leave for voting, but they also have voting machine technician protected leave. So it’s quite interesting how all the states are a little bit different. I think it’s Vermont, the thing for a town hall, they have a leave for town hall. So they just don’t mention election officials, they don’t mention voting, they just mention town hall leave.

Dee Anna Hays: Interesting. What are the three states that have leave for election officials not paid?

Susan Gorey: Those are Delaware, North Carolina, and Virginia.

Dee Anna Hays: And employees can use PTO, but they wouldn’t be entitled to?

Susan Gorey: Yeah, there’s a little unique circumstances of how much time they have to provide their employer that they’ve been selected or that they’ve volunteered to step in as an election official. So there’s always the unique circumstances, but I believe almost all of them require notice. And then some of them are able to use PTO if they have it accrued or vacation if they have it accrued.

Dee Anna Hays: For some employers that it might make a bigger impact to allow this time off to vote, can they require employees to prove that they use the time to vote?

Susan Gorey: There is only one state, I believe, that requires that, because I think a lot of the others that have the non-interference with the right to vote or retaliation for voting, some might view that as an interference or retaliation if they ask for a proof to vote. I believe it was Maryland, Dee Anna, is actually the state that requires employees to provide their employer with proof of voting or at least attempting to vote.

Dee Anna Hays: Interesting. Yeah, and I agree with you, Susan. I mean even in states that don’t have specific voting or election leave laws, there may be other laws that could come into play, such as employers shouldn’t coerce employees to vote in a certain way or take an adverse action against them because they are voting one way or the other.

Susan Gorey: Yes, absolutely.

Dee Anna Hays: And then we’ll wrap up here shortly. The focus, again, was really on these voting and election leave laws, but in summing up, we also just wanted to point out that there are other things that employers might want to keep on their radar as we’re so close to the election. And that would be in addition to attempting to regulate employee speech about political issues, make sure that you’re aware of the hot button issues, like we said, with voting and coercion, if they seep into areas of potential protected concerted activity such as speech that’s related to terms and conditions at work or wages that could be protected under the National Labor Relations Act. And then we have that relatively new guidance from the EEOC, the Equal Employment Opportunity Commission, on workplace harassment, that specifically, with respect to sexual harassment, indicates reproductive choice is now considered protected. So often abortion can be a topic that comes up-

Susan Gorey: Absolutely.

Dee Anna Hays: Yeah, with the election. So just be aware that those items could be protected as well. Any other closing thoughts, Susan?

Susan Gorey: No. As always, we understand that sometimes all these multistate issues keep you up at night.

Dee Anna Hays: Yes. We also have a blog article if you’re interested. Thank you so much for joining us. We really appreciate you spending this time with us, and we hope you have a good rest of October and an easy voting experience.

Susan Gorey: Yes. Have a great day.

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