The 2016 Presidential election is next week, along with many other federal, state, and local races that will be decided that same day. Employers need to know their obligations when employees request time off to visit the polls. Contrary to certain notices that have been making the rounds on social media sites, there is no federal law that requires an employer to provide time off for its employees to participate in the election process. Employers’ obligations — if any — are controlled by state law. In Michigan and its neighbor, Indiana, there are no state laws mandating that employers provide employees time off to vote. By contrast, Michigan’s other southern neighbor, Ohio, requires “reasonable” time off to participate in elections.
If your company has locations in states other than Michigan, take note that over half the states have voter work-leave laws (31 states to be exact), and they each have different approaches as to what is required. Some states require paid voting leave, posted notice requirements in the workplace of employee voting rights, formal requests from the employee with at least a few days’ notice, and proof from the employee that they voted, or combinations of such. Statutory provisions can also include employee rights with respect to serving as an election official and participating in political activity that day.
Prudent employers may want to provide training to those managers and supervisors charged with handling requests for time off to vote, whether paid or unpaid. Even if state law does not require time off for voting, employers need to communicate a denied request properly and consistently. Firing or disciplining an employee for taking unpaid time off to vote might be construed to violate other employment laws. In Michigan, it is a misdemeanor to “directly or indirectly discharge or threaten to discharge an employee . . . for the purpose of influencing the employee’s vote at an election.” MCL 168.931(1)(d). For this reason, employers need to take pains to make sure they do not appear to be permitting or denying leave requests on a partisan basis.
Multistate companies can take one of two approaches:
Of course, employers are permitted to go above and beyond the state law to encourage their employees to participate in the election process, provided that all employees are treated the same and that the employer is not encouraging or discouraging votes for certain candidates. The applicable state law is the minimum required to comply.