February 8, 2023

Volume XIII, Number 39


February 07, 2023

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February 06, 2023

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With Election Day Around the Corner, Employers Need to Remember You May Have to Give Employees Time Off to Vote

Next week on November 8, voters will head to the polls around the country for our midterm elections for the U.S. House, certain Senate seats, governorships, and other elected offices. And while voters are headed to the polls, employers should remember that they may have a requirement to provide time off to employees to vote.

For example, in Tennessee, an employee who is eligible to vote may be absent from work for a “reasonable period of time” (not more than three hours) to vote. Tennessee employers cannot penalize an employee for being absent from work to vote and cannot reduce the employee’s pay as a result of the absence. So, voting leave in Tennessee should be paid leave. The only exception to the law requiring paid leave to vote is if an employee’s shift begins three or more hours after the opening of the polls (typically 10 a.m. or later) or ends three or more hours before the closing of the polls (typically 4 p.m. or earlier). Under those circumstances, the employer does not have to give the employee time off to vote. Tennessee employees may specify the hours during which the employee may be absent to vote. An employee seeking time off to vote must request time off to vote before noon the day before the election.

Other states within Bradley’s footprint have similar laws requiring employers to grant leave – sometimes paid, sometimes unpaid – to employees who are voters:

  • Alabama: Every employee who provides “reasonable notice to his or her employer” is permitted to take off not more than one hour of work to vote. Voting leave in Alabama does not have to be paid. If the employee’s shift begins at least two hours after the polls open or ends at least one hour before the polls close, then the employee is not entitled to time off to vote. The employer may specify the hours during which the employee may be absent to vote.

  • District of Columbia: A D.C. ordinance permits employees, upon request to their employer, to take up to two hours of paid leave to vote. Employers are permitted to require employees to submit their requests in advance of the day the employee wishes to vote, to specify the hours during which the employee can take paid leave to vote, to require the employee to vote early, and to require the employee to vote at the beginning or end of the shift.  

  • Georgia: Georgia’s law is very similar to Alabama’s, except that if an employee’s shift ends at least two hours (instead of Alabama’s one hour) before the close of the polls, then the employee is not entitled to time off to vote.

  • Kentucky: Kentucky’s constitution requires that all employers allow employees at least four hours on election day to vote. An employer cannot penalize an employee for “taking a reasonable time off to vote,” but the absence does not have to be paid.

  • Maryland: Every employer must permit any employee “who claims to be a registered voter” a maximum of two hours off from work on election day to cast a ballot if the employee is not off of work for at least two consecutive hours while the polls are open. The two hours of time off must be paid, but the employee must provide proof that the employee has voted or has attempted to vote.

  • Mississippi: The state does not have a specific law requiring a certain amount of leave to vote. There is a statute that prohibits an employee from taking part in any political campaigns at their employer’s expense, with the exception of the necessary time off to vote.

  • South Carolina: The state does not have a specific voting leave law but does make it illegal to discharge an employee for their exercise of political rights.  

  • Texas: An employer cannot knowingly refuse to allow an employee to be absent from work on election day (or during early voting) to vote or subject or threaten the employee with a penalty for voting. The exception to the requirement to allow employees time off to vote is if the polls are open for at least two consecutive hours outside of the employee’s work hours. The employee cannot suffer a loss or reduction of wages or other benefit of employment, which means that the time off should be paid. 

Florida, Louisiana, North Carolina, and Virginia do not appear to have voting leave statutes. If an employer is unclear about whether a particular state requires employers to provide time off (paid or unpaid) to vote, and the particulars of any such leave, then the employer should consult legal counsel. Happy voting!

© 2023 Bradley Arant Boult Cummings LLPNational Law Review, Volume XII, Number 307

About this Author

John P. Rodgers Employment Attorney Bradley Nashville

John Rodgers helps employers solve their employment-related problems. His practice is three-fold. First, he counsels clients on the numerous situations that can arise related to their employees, including termination and disciplinary decisions, reasonable accommodation issues under the Americans with Disabilities Act (ADA), wage-and-hour issues under the Fair Labor Standards Act (FLSA) and state law, and Family and Medical Leave Act (FMLA) problems. His goal is to work with clients in a practical, problem solving way.

Second, John helps clients...

Anne R. Yuengert Employment Attorney Bradley Birmingham

Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators...