Do I Need To Give My Employees Time Off to Vote?

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By Kathleen J. Jennings (kjj@wimlaw.com)

Election Day is one week away, so it is a good time for employers to review the laws governing voting leave in the states where they do business. Chances are that you may be required to give employees some time off to vote.

In Georgia, there is a law that generally requires employers to give employees leave time to vote. O.C.G.A. 21-2-404 provides as follows:

Each employee in this state shall, upon reasonable notice to his or her employer, be permitted by his or her employer to take any necessary time off from his or her employment to vote in any municipal, county, state, or federal political party primary or election for which such employee is qualified and registered to vote on the day on which such primary or election is held; provided, however, that such necessary time off shall not exceed two hours; and provided, further, that, if the hours of work of such employee commence at least two hours after the opening of the polls or end at least two hours prior to the closing of the polls, then the time off for voting as provided for in this Code section shall not be available. The employer may specify the hours during which the employee may absent himself or herself as provided in this Code section.

Translated into regular language from legalese: a Georgia employer must give employees up to 2 hours off to vote, with the following conditions: (1) the employee gives reasonable notice of his/her intention to take the time off to vote, and (2) the employee’s work schedule on Election Day does not begin two or more hours after the polls open or end two or more hours before the polls close.

An employer who violates the statute is guilty of a misdemeanor.

The statute does not specify whether an employer must pay the employee during this voting leave, which means that an employer is not required to pay employees for their voting leave time. If an employer decides to pay employees for voting leave time, it should be consistent in its practice–if you decide to pay one employee for voting leave time, you should pay all employees for voting leave time.

The Georgia statute predates the current early voting periods. A literal reading of the statute would make it applicable only to voting leave on Election Day, and not during the entire voting period. However, there may be a practical reason for an employer to allow employees to use voting leave during the early voting period, especially when long delays in voting are expected on Election Day–it will limit the number of employees who are out of work at one time to vote. In other words, an employer can use an expanded voting leave policy to spread out the number of absent employees during the early voting period rather than have a large number out on Election Day. As always, an employer needs to be consistent in the application of its policy to avoid potential claims of discrimination.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

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