With primary elections in New York just two months away, employers must familiarize themselves with last year’s significant changes to the New York State Election Law.
Previously, employees were entitled to take up to two hours of paid leave to vote in any primary or general elections at the federal, state, county, city, town, or village level, as well as any special elections called by the Governor. However, employees were only entitled to such leave if they did not have four consecutive hours to vote before or after a working shift. This is no longer the case.
All employees are now entitled to take up to three hours of paid time off to vote in these types of elections (but not school district, library district, fire district, or special town elections), as long as they notify the employer at least two business days before the election. Although three hours is the maximum amount of paid leave an employee is entitled to, the law only permits employees to take off the actual amount of time needed to vote in an election.
According to guidance from the Board of Elections, employers are not in the best position to determine how much time an employee actually needs to vote, especially since waiting times and traffic conditions are unpredictable. Employers may want to engage in an interactive process with employees to estimate how much time they need to vote, but should be careful not to restrict employees’ ability to take the full three hours at the risk of violating the statute.
Employers should also be cautious in deciding whether to require employees to provide proof that they voted during their paid voting leave. Although the law is silent on this, the Department of Civil Service has taken the position that requiring proof of voter registration or voting would violate the statute.
These changes to the Election Law may result in employers facing last-minute scrambles to maintain their flow of business or needing to hire temporary replacements to cover shifts. And, given the varying dates of local elections, employers may not always be able to predict when employees will request paid voting leave. Employers are, however, permitted to designate whether employees may take leave at the beginning or end of their working shifts. This affords some scheduling flexibility and allows the employer to control when certain employees will be at work.
Some employers may find themselves particularly burdened by the recent amendments to the Election Law. For example, school districts may struggle to find coverage for employees taking voting leave given the current shortage of substitute teachers and per diem employees. Although the Elections Committee of the New York State Senate is considering proposed legislation that would restore the original four hour limitation for school district employees, it remains to be seen whether the law will change once again.