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Paid Voting Leave and Posting Requirements under New York’s Election Law

Like many states, New York has made it easier to vote due to the COVID-19 pandemic. As the presidential election is less than two weeks away, New York employers are reminded of their obligations under New York’s election law.

New York’s election law, which was amended again as part of the 2020-2021 budget, reverts in large part back to the pre-2019 version of the law. Briefly in 2019, employees who were registered voters were entitled to take up to three hours of paid time off to vote, and were required to notify their employers of their need to take such time off to vote not less than two working days before the election.

Under the current version of the law, New York employees who are registered voters are entitled to take up to two hours of paid time off to vote but only if they do not have “sufficient time to vote” outside of their working hours, and are required to notify their employers of their need to take such time off to vote between two and ten working days before the election.

Employees are considered to have sufficient time to vote if they have four consecutive hours either between the opening of the polls and the beginning of their working shifts, or between the end of their working shifts and the closing of the polls. Time taken off to vote must be at the beginning or end of a shift, unless mutually agreed otherwise. However, employers have the right to designate whether employees may take the paid time off at the beginning or end of their working shifts.

While two hours is the maximum paid time off allowed under the law, the amount of paid time off required must be determined on a case-by-case basis. The law does not specifically address the impact of the options for early voting or voting by absentee ballot, but employees who have elected to vote by absentee ballot or in-person early voting will not qualify for paid time off on an election day to vote. Conversely, for employees who have elected to vote in-person on an election day, consideration must be given to waiting times at polling places, traffic conditions, etc. Employers may not require employees to use their “personal time off” or any other form of earned leave time to vote.

Additionally, employers must conspicuously post in the workplace a notice of the provisions of New York’s election law not less than 10 working days before every election, and keep such notice posted until the close of the polls on election day. Employers still operating with remote employees should consider posting this notice via email to their employees. A model notice is available here: https://www.elections.ny.gov/NYSBOE/elections/TimeOffToVoteNotice.pdf

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Employment Notes, a newsletter produced by Tannenbaum Helpern Syracuse & Hirschtritt LLP’s Employment Law practice, provides insights on recent employment caselaw, legislation and other legal developments impacting employer policies, human resource strategies and related best practices. To subscribe to the newsletter, email marketing@thsh.com.

10.16.2020  |  PUBLICATION: Employment Notes  |  TOPICS: Employment

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