© 2021 American Payroll Institute, Inc. State Time Off to Vote Compliance Updates Off-year elections will be taking place across the country on Tuesday, November 2, and will include statewide elections in Colorado, Louisiana, Maine, New Jersey, Ohio, Pennsylvania, Texas, Virginia, and Washington special elections to the U.S. House of Representatives for Florida’s 20th Congressional District and Ohio’s 11th and 15th Congressional Districts and numerous state legislative special elections, citizen initiatives, mayoral races, and local elections. Although there are no federal laws that require employers to grant employees time off to vote, most states and Puerto Rico do have such laws, and employers must comply with the respective law in each state in which employees work (see APA’s Guide to State Payroll Laws, §1.8 Time Off to Vote Laws). Generally, time off to vote laws require employers to allow employees to take time off to vote if they would otherwise not have sufficient time to vote during non- working hours. State requirements vary, including when time off must be provided, whether time off must be paid, and whether the employee must request time off in advance. Some state laws contain costly penalty provisions for noncompliance. Some jurisdictions have made changes to their respective time off to vote requirements within the past year, including Connecticut (see PAYSTATE UPDATE, Issue 15, Vol. 23), the District of Columbia, Hawaii, New York, and Puerto Rico. During the pandemic, voting by mail became more widespread, and some of the changes reflect a move toward either mandating voting by mail or making it a more permanent option for voters. Hawaii eliminated its requirement to provide time off to vote when it mandated voting by mail for all statewide elections. California recently enacted a similar statewide vote-by-mail mandate, but it requires voting by mail to be offered to voters as an option, and it did not eliminate the time off to vote requirement (see PAYSTATE UPDATE, Issue 20, Vol. 23). More states are expected to establish similar vote-by- mail mandates, particularly in light of the widespread use of voting by mail during the pandemic, which gave states more experience and voters more confidence in the process. Because time off to vote laws generally apply when an employee would not otherwise have enough time to vote during non-working hours, employers should pay careful attention to whether time off to vote requirements are eliminated as vote-by-mail mandates are established. Paid time off for voting Employers are not permitted to make deductions from an employee’s wages for time spent voting in: Alaska, Arizona, California (permitted after two hours), Colorado (permitted after two hours), the District of Columbia, Illinois, Iowa (permitted after two hours), Kansas, Maryland (permitted after two hours proof of voting required), Minnesota, Missouri, Nevada, New Mexico, New York (permitted after two hours), Ohio (unless employee is paid on a piecework, commission, or hourly basis), Oklahoma (proof of voting required), Puerto Rico, South Dakota, Tennessee (time must be used to vote), Texas, Utah, West Virginia (unless employee fails to vote), and Wyoming (provided legal vote is actually cast). Employee notice Employees must provide some form of notice, including advance requests for time off, to employers for time off to vote in: Alabama, Arizona, California, Colorado, the District of Columbia, Georgia, Illinois, Iowa, Kentucky, Massachusetts (for certain industries), Missouri, Nebraska, Nevada, New York, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin. Penalties Penalty provisions that include fines and prison time for failure to comply with time off to vote (paid or unpaid) requirements apply in: Alaska, Arizona, Arkansas, California, Colorado, Iowa, Kansas, Massachusetts (for certain industries), Minnesota, Missouri, Nevada, New Mexico, New York, Ohio, Oklahoma, Puerto Rico, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming. Recent changes The District of Columbia requires employers to provide up to two hours of paid time off to vote to employees who are registered voters (see PAYSTATE UPDATE, Issue 17, Vol. 22). In 2020, New York reverted back to its prior requirement of two hours of paid time off to vote (from three hours of paid time off see PAYSTATE UPDATE, Issue 10, Vol. 22). Beginning with primary elections last year, all statewide elections in Hawaii are now conducted by mail and employers are no longer required to provide employees with time off to vote [Hawaii Office of Elections, Hawaii Votes By Mail webpage]. In Connecticut, as of June 23, 2021, employers must allow employees at least two hours of unpaid time off to vote during the employee’s regularly scheduled work schedule on the day of a state election during voting hours (i.e., 6 a.m. 8 p.m.). Employees must request time off at least two working days in advance. The requirement applies to state elections and to special elections for state or federal representatives or senators. The law expires on June 30, 2024, unless it is extended [S.B. 1202A, L. 2021]. November 1, 2021 Volume 23 Issue 21
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