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Employee Leave for Voting

When election time draws near, employers should be prepared to handle requests from employees for time off from work to vote. Federal law does not require employers to provide their employees with time off to vote. However, many states have voting leave laws that allow employees to take time off to vote in certain circumstances.

The specifics vary by state, but many of these voting leave laws:

  • Require the leave to be paid;
  • Impose a notice requirement on employees; and
  • Allow employers to designate the hours during which employees may be absent to vote.

Employers should be aware of the voting leave laws that apply to them and be prepared to comply with any applicable requirements.

Leave Requirements By State

  • Alabama (Ala. Code 1975 § 17-1-5): Employees may take up to one hour of leave to vote in any municipal, county, state, or federal primary or general election. However, if an employee’s work schedule begins at least two hours after the polls open, or ends at least one hour prior to the polls closing,the employee is not eligible for voting leave. Employees must provide reasonable notice to their employers if they require time off to vote. The employer may specify the hours of leave.
  • Alaska (AS § 15.15.100; AS § 15.56.100): Employers must provide employees with paid leave to vote on an election day, unless the employee has two consecutive hours of non-working time, either between the opening of the polls and the start of his or her shift, or between the close of the polls and the end of his or her shift.
  • Arizona (A.R.S § 16-402): Employers must provide employees with paid leave to vote in a primary or general election, unless they have at least three hours before or after work to do so. Employers must provide an amount of leave that would give employees three consecutive hours (including non-working time) to vote at the polls. Employees must apply for leave prior to election day. Employers may designate the hours that employees may be absent.
  • Arkansas (A.C.A. § 7-1-102): Employers must schedule employee work hours on election day in a way that will allow employees the opportunity to vote.
  • California (Cal. Elec. Code § 14000; Cal. Elec. Code § 14001): Employers must provide employees who do not have sufficient time outside of working hours to vote on an election day with leave for voting purposes. An eligible employee is entitled to take as much time off as necessary to vote. However, employers are only required to pay the employee for up to two hours of missed work time for voting leave. In addition, unless the employer and employee agree otherwise, an employee may only take leave at the beginning or end of his or her regular working shift (whichever allows the most free time for voting and the least time off from his or her regular working shift). If, on the third working day before an election, the employee knows or has reason to believe that he or she will need time off to vote, the employee must give the employer at least two working days’ notice of his or her intent to take leave. Employers must post a notice informing employees of their voting leave rights at least 10 days before every statewide election. The notice must be posted conspicuously at the workplace or where it can be seen as employees come or go to their place of work. The California Secretary of State’s office has provided sample notices in both English and Spanish.
  • Colorado (Colo. Rev. Stat. § 1-7-102): Employers must provide employees with up to two hours of paid leave to vote in any primary or general election. An employer is not required to grant voting leave to any employee who has three or more hours off from work while the polls are open. Employees must apply for leave prior to election day. The employer may specify the hours during which the employee may be absent. However, if the employee requests that the time away from work be at the beginning or end of the work shift, the employer must grant this request.
  • District of Columbia (D.C. Code § 1-1001-07a.): Employers must provide employees with at least two hours of paid leave to vote in person in any district election or election in a jurisdiction in which the employee is eligible to vote. The leave must be granted upon the employee’s request, but the employee must have been scheduled to work during the time requested for the leave. Employers may:
    • Require the employee to request the leave a “reasonable time” in advance; and
    • Specify the hours during which the employee may take the leave, including by requiring that the employee take the leave:
      • During a period designated for early voting instead of on the day of the election; or
        At the beginning or end of the employee’s scheduled working hours.
      • Employers may not deduct voting leave from an employee’s salary, wages or accrued leave. Employer posting requirements apply.
  • Georgia (GA ST § 21-2-404): Employers must provide employees with up to two hours of time off to vote in any municipal, county, state, or federal political party primary or election. The leave time maybe used to vote on election day or on a day designated for advance, in-person voting. Employees must provide the employer with reasonable notice of the absence. Employers may specify the hours during which the employee may be absent.
  • Illinois (IL ST CH 10 § 5/17-15): Employers must provide employees with up to two hours of paid leave to vote in a general or special election or an election where propositions are submitted for a vote. The employer may specify the hours during which the employee may take leave to vote. To qualify for two hours of voting leave, the employee’s working hours must begin less than two hours after the polls open and end less than two hours before the polls close. An employee must apply for the leave with the employer prior to the day of the election.
  • Iowa (Iowa Code § 49.109): An employer must provide paid leave to an employee to vote so that they will have at least two consecutive hours (including non-working time) to vote when the polls are open. Leave must be requested in writing before election day, and employers must designate the period of time to be taken.
  • Kansas (K.S.A § 25-418): Employees must be allowed two consecutive hours of paid time off to vote in an election. However, if polls are open for less than two consecutive hours outside an employee’s working hours, employers are only required to allow enough leave that,when added to the employee’s non-working hours, provides at least two consecutive hours during which the polls are open. An employer may specify the hours an employee may leave work to vote, but it may not designate the employee’s lunchtime for voting.
  • Kentucky (KRS§ 118.035): Employees who apply for leave from work at least a day in advance must be allowed at least four hours of leave to request an application for or to execute an absentee ballot,or to vote on election day. An employer may specify the hours that employees may take the leave. An employee may not be penalized for taking time off to vote (unless the employee fails to vote under circumstances that did not prevent them from voting).
  • Maryland (Md. Code Ann., Elec. Law § 10-315): Employers must provide employees with up to two hours of paid leave to vote. However, leave is not required for employees who have at least two consecutive hours off work when the polls are open. Employees must provide proof that they voted, on a form prescribed by the state.
  • Massachusetts (Mass. General Laws 149, § 178): All employers in the manufacturing, mechanical or mercantile industries must allow eligible employees to take leave to vote if they request it. An employee may request leave during the two hours after the polls open in the voting precinct, ward or town where the employee is entitled to vote.
  • Minnesota (MN ST § 204C.04): An employee is entitled to be absent from work for the time necessary to appear at the employee’s polling place, cast a ballot and return to work on the day of an election, or during the time allowed under state law for voting in person before election day. An employer may not penalize an employee or deduct from salary or wages because of the absence. For purposes of these voting leave rights, an election means:
    • A regularly scheduled election;
    • An election to fill a vacant U.S. Senate or House of Representatives seat;
    • An election to fill a vacancy in nomination for a constitutional office;
    • An election to fill a vacant Minnesota Senate or House of Representatives seat; or
    • A presidential nomination primary.
  • Missouri (Mo. Rev. Stat. § 115.639): Employers must allow employees three hours of paid leave to vote on an election day, if the employees applied for leave prior to election day. Leave is not available if an employee’s work schedule provides three consecutive hours of non-working time when the polls are open. Employers may specify the hours during which employees may take leave to vote.
  • Nebraska (Neb. Rev. St. § 32-922): Employees must be allowed up to two consecutive hours of paid time off to vote on an election day. Employees must apply for leave in advance of election day, and the employer may specify the hours during which the employee may take leave. Employees who have at least two consecutive hours of non-work time when the polls are open to vote are not eligible for leave. In addition, allowing an employee less than two hours of leave is permissible if the time away from work combined with the employee’s non-work time is at least two consecutive hours between the opening and closing of the polls.
  • Nevada (N.R.S. 293.463): An employer must grant an employee sufficient time away from work to vote, if it is impracticable for the employee to vote during non-working hours. “Sufficient time” is based on the distance from the work site to the polling location, not exceeding three hours. An employee must request leave to vote prior to the day of the election. Employers may designate the hours during which the employee may take leave to vote. Voting leave must be paid.
  • New Mexico (N.M.S.A. 1978 § 1-12-42): Employers must allow employees up to two hours of paid leave to vote on an election day. However, voting leave is not required for an employee whose workday begins two or more hours after the polls open or ends more than three hours before the polls close. An employer may designate the hours an employee may take leave to vote. An employee who takes leave to vote may not be liable for any penalty.
  • New York (N.Y. Elec. Law § 3-110): Employees who do not have sufficient time to vote outside working hours are entitled to as much time off from work as necessary to vote, up to two hours of which must be paid. “Sufficient time to vote” means four consecutive hours either from the opening of the polls to the beginning of the work shift, or from the end of the shift to the closing of the polls. The amount of paid time off required must be determined on a case-by-case basis, as waiting times at polling places, traffic conditions and other factors may vary. The employee must notify his or her employer of the need to take time off from work to vote at least two working days before election day. An employer is required to grant leave only at the beginning or end of an employee’s work shift, and may designate when the employee takes leave. Employers must post a notice informing employees of their right to take voting leave at least 10 days before an election day. The notice must remain posted until polls close on the election day. A sample poster is available on the New York State Board of Elections’ website.
  • North Dakota (NDCC § 16.1-01-02.1): Employers are encouraged to allow employees time off to vote when an employee’s work schedule conflicts with the time the polls are open.
  • Ohio (OH ST §3599.06): Employers may not discharge, or threaten to discharge, or inflict any injury, harm or loss on an employee for taking a reasonable amount of time to vote on election day.
  • Oklahoma (26 Okl. St. Ann. § 7-101): Employees must be allowed up to two hours of paid time off to vote, either on election day or on a day allowed for in-person absentee voting. However, employees must receive “sufficient time” necessary to vote if they require more than two hours of travel time. Leave is not available if the employee’s work shift begins three or more hours after the polls open or ends three or more hours before the polls close. Employers may change the work hours to allow three hours before the beginning of work or after work ends for employees to vote. Employees must provide notice to their employers three days before the election (or in-person absentee voting day) if they require time off to vote. Employers may specify the days and hours during which employees may leave work to vote.
  • South Carolina (SC Stat. § 16-17-560): South Carolina law prohibits employers from discharging employees for the exercise of political rights and privileges guaranteed by federal or state law.
  • South Dakota (SDCL § 12-3-5): An employer must provide employees with up to two hours of paid leave to vote in any primary or general election on election day. However, an employee is not eligible for voting leave if their work schedule allows for two consecutive hours during the time the polls are open. The employer may specify the hours an employee may take leave to vote.
  • Tennessee (TN Stat. § 2-1-106): Employees may be absent from work for a reasonable amount of time, up to three hours , to vote, unless the polls are open for at least three consecutive hours outside of the employee’s work hours. Employees must request leave to vote before noon on the day before the election. Leave is paid if it occurs during the employee’s normal working hours. The employer may specify the hours during which the employee may be absent to vote.
  • Texas (Tex. Elec. Code § 276.004): Employees may be absent from work for a reasonable amount of time to vote on election day or while early voting is in progress, unless the polls are open for at least two consecutive hours outside of the employee’s work hours. Voting leave is paid.
  • Utah (U.C.A. 1953 § 20A–3a–105): Employers must provide employees with up to two hours of paid leave to vote on an election day or while early voting is in progress, if the employee applied for leave before the election day. However, leave is not available to employees with three consecutive hours of non-work time when the polls are open. Employers may specify the hours during which the leave takes place, but they must grant requests for leave at the beginning or end of the work shift.
  • West Virginia (W. Va. Code § 3-1-42): Employers must provide employees with up to three hours of paid leave to vote on an election day. An employee must request voting leave in writing at least three days before election day. However, an employee will not be eligible for voting leave if he or she has three or more hours of non-work time when the polls are open (although an employer may choose to provide the employee with unpaid time to vote). In essential government, health, hospital, transportation and communication services, and in production, manufacturing and processing works requiring continuity in operation, employers may schedule employee voting leave to avoid disrupting essential services and business operations.
  • Wisconsin (W.S.A. 6.76): An employee may be absent from work for up to three consecutive hours to vote, if the employee notifies his or her employer of the intended absence before the day of the election. The employer may designate the time of day for the absence. Employers are not required to pay employees for voting leave. However, no penalty other than a deduction for time lost may be imposed on an employee because he or she takes voting leave.
  • Wyoming (W.S. 1977 § 22-2-111): An employer must provide up to one hour of paid leave to an employee to vote in any primary, general or special election. The employer may designate the most convenient time for the employee to take voting leave (other than a meal hour). Employees who have three or more consecutive non-working hours during the time the polls are open are not eligible for voting leave.

Connecticut, Delaware, Florida, Hawaii, Idaho, Indiana, Louisiana, Maine, Michigan, Mississippi, Montana, New Hampshire, New Jersey, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington have no specific law requiring time off to vote.

VOTING RESOURCES

Voting and Elections in the United States: Find answers to common questions about voting in the United States
U.S. Election Assistance Commission

Is An Employer Provided Health Club Membership
an ERISA Benefit?

Some companies contribute toward the cost of health club memberships for employees. Does the employer membership contribution (or the provision of an on-site health club or fitness center) create an ERISA plan? In general, neither paying for employees’ health club memberships nor providing an on-site fitness center for employees will constitute an ERISA plan. For an employer-provided benefit program to qualify as an ERISA plan, it must (among other things) provide one or more of the benefits listed in the ERISA definition, such as medical, sickness, or disability benefits. While health and fitness clubs and on-site fitness centers promote general good health, they normally are made available without regard to sickness or disability and do not diagnose or treat specific medical conditions, so they typically do not provide medical care, benefits in the event of sickness, or any other ERISA benefit. Without an ERISA benefit, a policy or program of paying for health club memberships or providing an on-site fitness center would not be an ERISA plan.

In very rare situations, membership in a health club or access to an on-site fitness center may be offered to employees as part of an arrangement (such as a disease-management program) that includes diagnostic, therapeutic, or preventive care or “coaching” for specific health conditions or risks. This type of health club arrangement may be viewed as providing a medical benefit, potentially making it subject to ERISA and applicable group health plan rules either on its own or as an element of a larger plan, depending on how the arrangement is structured. Determining how ERISA applies to this type of program is complex and fact-specific, and should be undertaken with the assistance of legal counsel. Whether a benefit is subject to ERISA does not depend on or affect whether the benefit produces taxable income for participants or beneficiaries. However, an employer’s payment or reimbursement of health club dues or provision of an on-site fitness center may raise tax issues, which should also be reviewed with legal counsel.

Will Pandemic Related Tele-Health Flexibilities Be Extended Beyond December 31, 2024?

During the Covid pandemic, Congress enacted legislation that allowed (but does not require) Qualified High Deductible Health Plans (QHDHPs) to provide telehealth on a pre-deductible basis. (Absent such relief, telehealth provided by a QHDHP prior to satisfaction of the minimum required HDHP deductible must be charged to the member at fair market value.) This relief was extended several times and is currently scheduled to expire on December 31, 2024. Another extension of this relief is under discussion in the U.S. Congress, but it is unclear if or when such relief might be passed. It is doubtful that any legislation will succeed pre-election. If your plan has allowed such relief, stay tuned for further information.

© 2024 Moreton & Company. This newsletter is intended to inform recipients about industry developments and best practices. It does not constitute the rendering of legal advice or recommendations and is provided for your general information only. If you need legal advice upon which you can rely, you must seek an opinion from your attorney.