Election Day is right around the corner, and employers should be aware of their obligations with respect employees who may need time off from work to vote.
While the Election Law was changed in 2019 to allow employees to take up to three (3) hours of paid time off to vote regardless of whether the employee had sufficient time to vote before or after their regular workday, the law has since been amended again to largely revert to its pre-2019 voting leave requirements.
New York’s Election Law now provides that if a New York employee does not have “sufficient time” to vote outside of working hours, i.e. four (4) consecutive non-working hours while polls are open, they may take as much time off to vote as needed, with two (2) of those hours required to be paid by the employer.
Employers may specify that the voting time be taken at either the beginning or end of the employee’s working shift, or at an otherwise mutually agreeable time. Per the New York State Board of Elections, this time may not be charged to an employee’s vacation, sick, personal or other PTO bank.
In order to avail themselves of time off to vote, employees must be registered to vote and must provide at least two (2) but not more than ten (10) days’ advance notice of the need for time off to vote. The law is silent as to whether an employer can require proof that the employee voted, but short of an “I Voted” sticker, such “proof” is hard to come by. Employers should instead consider having employees complete a voting verification form when the employee returns to work.
Finally, employers that updated their paid time off policies last year to reflect the 2019 Election Law amendment should take this time to revisit their policies regarding voting leave law before the next primary election. Employers are either free to leave their current, more generous policy in place, or issue an updated voting leave policy that conforms to the new, more restrictive provisions as soon as possible.
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If you have questions or would like additional information, please contact Ilan Weiser (iweiser@egsllp.com) or the primary EGS attorney with whom you work.
