Election (Non)Interference: Update on State Voting Leave Requirements for Employers Ahead of the 2024 Presidential Election | Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Millions of Americans will be headed to the polls on November 5, 2024, in what is shaping up to be an extremely close presidential election with high voter turnout. Employers may need to consider how employees’ voting time may impact their workplaces.

Quick Hits

• Voter turnout for the November 2024 elections is expected to be high, meaning many employees will be taking time off to exercise their right to vote.
• Most states require employers to provide unpaid voting leave, while a handful of others require that leave to be paid.
• Employers may want to start considering each state’s specific voting leave requirements and whether their employees will be impacted.

The race for president appears to be set between the Republican nominee, former president Donald Trump, who previously served one term in office from 2017 to 2021, and the Democratic nominee, Vice President Kamala Harris, who shot to the top of the ticket after President Joe Biden surprisingly exited the race in July and endorsed her. Control of the U.S. Congress is also up for grabs for both major parties, with close races for several seats in the U.S. House of Representatives and thirty-four of the one hundred seats in the U.S. Senate up for election.

With United States politics deeply polarized and voters sharply divided on key issues from immigration to the economy to reproductive health, experts predict the presidential election will be razor-thin and likely come down to a handful of swing states. Early polling suggests voters are paying attention and that voter turnout will be high, particularly in the key swing states.

The time is now for employers to begin preparing for employees to take leave to vote. Most states require employers to provide unpaid leave to vote or do not have specific requirements, while some states require paid leave. Even in states without specific voting leave requirements, employers may be restricted from interfering with employees exercising their right to vote. Employers may want to carefully analyze each state’s laws in anticipation of the upcoming election.

Here is an overview of state voting leave laws:

Fifty-state map (including the District of Columbia) presenting an overview of voting/election leave laws in the United States | ©Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

States With Paid Voting Leave Laws

• Alaska—State law requires employers to allow employees who do not have two consecutive nonworking hours while the polls are open to take off as much work time as necessary to vote “without loss of pay.”
• Arizona—State law requires employers to provide up to three hours of paid leave to vote, if necessary.
• California—State law provides up to two hours of paid leave to vote.
• Colorado—State law provides up to two hours of paid leave to vote.
• District of Columbia—State law provides up to two hours of paid leave to vote.
• Illinois—State law provides up to two hours of paid leave to vote.
• Iowa—State law provides up to two hours of paid leave to vote.
• Kansas—State law provides up to two hours of paid leave to vote.
• Maryland—State law provides up to two hours of paid leave to vote.
• Minnesota—Employers must provide employees with “the time necessary” to travel to their designated polling places and return to work on Election Day.
• Missouri—State law requires employers to provide up to three hours of paid leave to vote, if necessary.
• Nebraska—State law provides up to two hours of paid leave to vote.
• Nevada—Employees may request “sufficient” leave time to vote on Election Day, which is determined based on the distance of the polling place from the employee’s workplace (one hour for up to two miles; two hours for greater than two and up to ten miles; and three hours for more than ten miles).
• New Mexico—State law provides up to two hours of paid leave to vote and applies to elections for Native American nations, tribes, or pueblos.
• New York—State law requires employers to give employees two hours of paid leave if employees do not have at least four consecutive nonworking hours to vote while polls are open. Also, employers must conspicuously post a notice (prepared by the New York State Board of Elections) in their workplaces informing employees of the voting leave protections at least ten days before Election Day. The notice must remain posted until polls close on Election Day. However, employees must give employers notice of the need for time off no more than ten days and no less than two workdays before Election Day.
• Oklahoma—State law provides up to two hours of paid leave to vote.
• South Dakota—State law provides up to two hours of paid leave to vote.
• Tennessee—State law requires employers to provide up to three hours of paid leave to vote, if necessary.
• Texas—Employers must allow employees to take paid time off to vote unless the polls are open for two consecutive hours outside of an employee’s working hours.
• Utah—State law provides up to two hours of paid leave to vote.
• West Virginia—State law requires employers to provide up to three hours of paid leave to vote, if necessary.
• Wyoming—Employers must provide one hour of leave other than a meal break to vote in a general, primary, or special congressional election unless polls are open for at least three consecutive hours outside of an employee’s work shift.

States With Unpaid Voting Leave Laws

• Alabama—Employees are allowed up to one hour of leave to vote in a primary or general election if the polls are not open at least two hours before or one hour after an employee’s work shift.
• Arkansas—Employers must allow employees to take a reasonable amount of time off, unpaid, to vote on Election Day.
• Georgia—The state recently amended its voting leave statute to specify that employees are allowed to take up to two hours of time off to vote. Additionally, employees may take the time off either on a day designated for early in-person voting or on the day the election is held.
• Kentucky—The state provides the most time for voting leave, requiring employers to allow employees to take unpaid leave for a reasonable time, but not less than four hours, to vote or apply for an absentee ballot. Employees must request leave in advance and specify the hours to be used.
• Massachusetts—The state requires employers to provide unpaid voting leave to employees working in manufacturing, mechanical, or mercantile establishments. Employees may only request leave for the first two hours after the polls are open.
• Ohio—Employers must allow employees to take a reasonable amount of time off, unpaid, to vote on Election Day.
• Wisconsin—Employers must allow employees to take up to three consecutive hours of unpaid leave to vote. Employers may not deny a request for this leave but may designate the specific time of the absence.

States Without Specific Voting Time Off Requirements

• Connecticut—Employers may not attempt to influence an employee’s vote by discharging or threatening to discharge an employee from employment.
• Delaware—Employers may not intimidate employees into how to vote or not to vote.
• Florida—Employers are prohibited from discharging employees for voting or based on how they voted.
• Hawaii—The state does not have specific voting leave laws, but both conduct elections by mail, eliminating the need to take leave to wait at the polls.
• Idaho—Employers may not attempt to influence an employee’s vote by discharging or threatening to discharge an employee from employment.
• Indiana
• Louisiana—Requires employers with twenty or more employees not to make any rule prohibiting an employee from participating in politics.
• Maine
• Michigan—Employers may not attempt to influence an employee’s vote by discharging or threatening to discharge an employee from employment.
• Mississippi—Employers are prohibited from discharging employees for voting or based on how they voted.
• Montana
• New Hampshire
• New Jersey—Employers may not intimidate employees into how to vote or not to vote.
• North Carolina
• North Dakota—State law encourages, but does not require, employers to allow employees to take leave to vote in all elections when employees’ regular work schedules conflict with the time the polls are open.
• Oregon
• Pennsylvania—prohibits employers from interfering with an employee’s right to vote.
• Rhode Island
• South Carolina
• Vermont
• Virginia
• Washington—The state does not have specific voting leave laws, but both conduct elections by mail, eliminating the need to take leave to wait at the polls.

Next Steps

Employers may want to consider each state’s unique legal framework surrounding voting leave to ensure compliance with applicable law, including whether voting leave is affected by the timing of an employee’s working hours and polling hours, whether voting leave is required, whether voting leave is paid or unpaid, what notice employees must provide to utilize the voting leave, what notice employers must provide to employees, restrictions on action against employees related to voting or political opinions or exercising political rights, and any applicable exceptions.