As Election Approaches, New York Employers Need to Be Aware of Paid Voting Leave and Voting Rights Posting Requirements

With the November 3, 2020 general election one month away, New York employers must remember that New York’s Election Law grants employees working in New York paid time off to vote and also imposes specific, time-sensitive posting requirements.

In April 2019, New York amended Election Law Section 3-110 to provide that all registered voters may request up to three hours of time off, regardless of their schedule, without loss of pay, to vote in any public election.  This amendment removed a previous requirement that employees were eligible for voting leave only if they did not have sufficient time off before or after their shift to vote. 

Amended Paid Voting Leave Requirement

New York again amended the Election Law, effective April 3, 2020, to reduce the amount of paid voting leave an employee may request off from work without loss of pay to two hours, rather than three hours.  The amendment also reinstated the prior requirement that an employee is only eligible for time off during working hours if they do not have four consecutive hours off either between the opening of the polls and the beginning of their working shift, or between the end of their working shift and the closing of the polls.  

For example, as the polls in New York State open at 6:00 a.m. and close at 9:00 p.m., an employee with a 9:00 a.m. to 5:00 p.m. shift has four consecutive hours between the end of their shift and the closing of the polls to vote, and therefore is not entitled to paid time off to vote.  If, however, the shift begins at 9:00 a.m. and ends at 6:00 p.m., the employee does not have four consecutive hours before or after work to vote, and is eligible for up to two hours paid time off to vote, either at the beginning or end of their shift, as the employer designates or as mutually agreed.

Employees must request working time off to vote no more than 10 nor less than 2 working days before Election Day.  A working day is defined by the state Board of Elections as any day when the employer is operating and/or open for business—it is not based on the employee’s own work schedule.

Posting Requirement

The law also requires employers to post conspicuously where it can be seen by employees coming or going from work at least 10 working days before Election Day a Notice setting forth the paid voting leave rights under this law.  If the employer is, for example, a retail business open seven days a week, it would have to post the notice 10 days before the general election, or by October 24, 2020.  If an employer is only open for business Monday to Friday, the Notice must be posted two weeks before Election Day, by October 20, 2020.  

Employers may not require employees to use their existing paid time off or other earned leave time to vote.

The state has issued Frequently Asked Questions regarding the amended voting leave law.  The FAQs do not address acceptable virtual or electronic means of posting the required Notice.  Employers should consult with employment counsel regarding such methods of posting.  Employers should also consult counsel regarding whether the New York voting leave provisions apply to employees working remotely from out of state on a temporary basis during the Covid-19 pandemic.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.