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NYS Paid Voting Law Changes

Employers must be aware of and comply with the recent changes to New York’s “time off to vote” statute, Election Law Section 3-110.  Section 3-110 provides that: “(a) registered voter may, without loss of pay for up to three hours, take off so much working time as will enable them to vote(.)” Section 3-110 applies to federal, state, county, city, town, and village elections, including primary, general, and special elections. It does not, however, apply to school board elections.

Per the plain language of the statute, the employee does not automatically receive three hours to vote; rather, the employee is entitled to take off as much time (up to three hours without loss of pay) as will enable the employee to vote. While there is no easy rule as to what constitutes "so much working time as will enable them to vote,” the employer alone is not in the best position to make that determination. Voter wait times at the polls and traffic conditions, among other things, can cause the amount of time needed to be more or less. If the employer reduces the time a voter requests under this provision, the employer runs the risk of running afoul of this statute.

The statute and administrative guidance strongly suggest that employers cannot require employees to use any paid time off, personal time, etc. to cover the voting leave.  Employers are, however, empowered to designate whether an employee can use their voting leave at the beginning or end of his or her scheduled shift.

Employers must post a notice regarding the availability of time off to vote at least 10 days prior to Election Day (should be posted by now for 11/3/2019 election!). A link to the poster can be found below. Employees must notify the employer of their need for time off to vote at least two (2) working days prior to the election.  Employers can generally deny the employee’s request if request is made less than two (2) days prior to the election.

The law applies only to registered voters, but does not specify whether or not an employer can ask for proof that an employee is registered. Guidance issued by the New York State Civil Service Department suggests that employers cannot require such proof. It also remains unclear whether employers can require employees to submit proof that they used the time to vote.

According to guidance from the New York State Board of Elections, time off to vote is available only on Election Day and does not provide time off during early voting periods.

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