New York State Election Law Reverts Back to Two Hour Paid Time Off Requirement

Seyfarth Synopsis:  Last year, as part of the New York State FY 2020 Budget, Section 3-110 of the New York State Election Law was amended to increase the amount of paid time off that employees could take to vote in any election from two hours to three hours, among other changes.  We reported on those prior amendments here.  This year’s budget again amends the Election Law to restore the provisions of the old law requiring employers to provide two hours of paid time off to vote if an employee does not have sufficient time outside of his or her scheduled working hours to vote (presumed to be four hours between the start or end of the employee’s shift and the opening or closing of the polls).

In its pre-2019 form, Section 3-110 of the New York State Election Law required New York employers to provide “sufficient time” outside of an employee’s working hours for that employee to vote in any election.  An employee was deemed to have “sufficient time” to vote if he or she had four consecutive hours either between the opening of the polls and the start of the employee’s shift, or between the end of the employee’s shift and the closing of the polls.  Employees with less than four consecutive hours before or after their shift could take up to two hours off without losing pay to vote.  An employer could designate whether the time off occurred at the beginning or end of the employee’s shift, and employees were required to notify their employers not more than ten nor less than two working days before the day of the election that they needed time off to vote.  The law further mandated that employers post a notice conspicuously in the workplace setting forth the provisions of Section 3-110 at least ten working days before an election.

Election Law 2019 Amendments

The 2019 amendments to the Election Law eliminated the “sufficient time” requirement.  Instead, employees who were otherwise scheduled to work on an election day could take up to three hours off in order to vote in any election without losing pay.  Additionally, while employees were still required to notify their employers not less than two working days before the day of the election that they require time off to vote, the amendments to the law removed the upper ten-day limit on when notice may be given. 

Election Law 2020 Amendments

Under the 2020 amendments, the number of hours and “sufficient time” requirements revert back to the pre-2019 law.  Employers are once again only required to provide two hours of paid time off to vote if an employee does not have sufficient time outside of his or her scheduled working hours to vote.  If an employee has four consecutive hours between the start or end of the employee’s shift and the opening or closing of the polls, he or she is presumed to have sufficient time, and the employer need not allow the employee to take paid time off to vote during the workday.  In addition, the upper ten-day limit on when employees must give notice has been added back into the law.  Employers must still post a notice conspicuously in the workplace setting forth the provisions of Section 3-110 at least ten working days before an election.

Employer Takeaways

The New York Primary Election is on June 23, 2020 and the General Election will follow on November 3, 2020.  Employers must ensure updated notices are posted conspicuously in the workplace at least ten working days before the next election.  We expect that the New York State Board of Elections will post an updated model notice on its website, although no such notice has been posted to date.  Additionally, employers should review their policies and procedures, including employee handbooks, to ensure compliance with the amended law.