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Labor Law: Employers should communicate policies on time off for voting

Labor Law: Employers should communicate policies on time off for voting

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RTD Metro Business law columnist, Karen Michael.

As Election Day approaches, Virginia employers will need to communicate any company policies surrounding time off to vote, and other expectations.

There is no federal law that provides a right for employees to have time off to vote.

Gov. Ralph Northam announced that Nov. 3 will be a state holiday, but this only mandates state employers to provide a day off for workers, not the private sector.

Some states provide for certain rights to workers to have time off.

Workplacefairness.org lists employee rights by state. For example, Maryland requires that employers provide up to two hours of paid time off to vote if the employee doesn’t have two full hours off to vote, unless the employee already has at least two hours off work while polls are open.

Virginia law is silent on the issue of employee voting rights, other than a requirement for those requiring leave to serve as an “officer of election.” Employers are otherwise free to set their own policies, if they choose, to make sure that employees have sufficient time off to vote.

This year is unique due to the greater flexibility for early mail-in voting, which may make it less necessary for employees to use time off to vote on Election Day.

As soon as possible prior to Election Day, employers should communicate with all employees regarding their policy, if any, providing time off to vote.

If the employer has no policy, the employer should notify employees that it expects that employees will vote before or after their normal workday, or during their normal lunchtime break. Advise employees that if they anticipate any issues with being able to vote before or after work, or during lunch, that they need to talk with their supervisors ahead of time, and not wait until Election Day.

Employers cannot dock the pay of exempt employees who arrive late to work, or leave early, to vote, but non-exempt employees who are paid hourly will only be paid for the time the employee is at work. However, employees (both exempt and non-exempt) who fail to comply with the employer’s attendance policies can be disciplined. For these reasons, it’s important to set the expectation ahead of time so there is no confusion over what the employer expects.

Employers should not communicate political preference, or provide benefits only to certain employees whom the employer believes will vote in favor of the manager or employer’s political preference.

According to a 2020 study conducted by the Society for Human Resources Management (SHRM), most employers are offering some form of time off — either paid or unpaid.

The SHRM study showed that a third of HR professionals from large organizations said they are offering unpaid time off for voting in the 2020 elections (33%), compared with 30% of medium and 23% of small organizations.

The study also showed that 55% of HR professionals from small organizations (1-99 employees) said they are offering paid time off for voting, compared to 43% of medium (100-499 employees) and 45% of large organizations (500-plus employees).

Karen Michael is an attorney with Richmond-based KarenMichael PLC. She can be reached at kmichael@karenmichaelconsulting.com.

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