Under a new law, District of Columbia employers will be required to provide at least two hours of paid leave for employees to vote in person.
District of Columbia Mayor Muriel Bowser recently signed and approved the Leave to Vote Amendment Act of 2020. Once effective, the act will provide DC employees with at least two hours of paid leave to vote in person, regardless of an employee’s state of residence. Although the act’s effective date remains unclear—to take effect, the DC government must fund the act in its upcoming budget—it is likely to take effect in advance of the upcoming 2020 presidential general election.
The act covers all DC employers with at least one paid individual, and broadly defines “employee” to include “any individual employed by an employer who is eligible to vote.” It does not, however, provide a mechanism for confirming an employee’s voting eligibility.
Upon an employee’s request, DC employers must provide the employee with at least two hours of paid leave to vote in person in any public election in the District of Columbia.[1] While an employer may require that employees request leave a reasonable time in advance, the act does not identify the specific amount of notice that is required or the form in which the notice must be provided.
DC employees who are ineligible to vote in the District of Columbia are eligible for the same benefit in any election run by the jurisdiction in which the employee is eligible to vote. Therefore, DC employees who reside in Maryland and Virginia, as well as other jurisdictions, are also eligible for the paid benefit.
As a way of attempting to minimize business interruptions, the act permits employers to specify certain parameters that eligible employees must follow in order to access the benefit. Specifically, employers may specify the hours during which employees may take voting leave, including at the beginning or end of an employee’s shift. Employers may also require that employees take voting leave during early voting periods rather than on Election Day.
The act does not include an individual employee notice requirement. However, employers must post and maintain in a conspicuous location a notice developed by the DC Board of Elections describing employee rights under the act. The act also makes it unlawful to interfere with, restrain, or deny any attempt to take leave pursuant to the act and prohibits retaliation against an employee who takes leave under the act.
The act’s projected effective date is June 23, 2020, following a mandatory 30-day congressional review period required under the District of Columbia’s Home Rule Act. The act will not take effect, however, until it is funded in the DC budget.[2] A representative from DC Council Chairman Phil Mendelson’s office indicated that the Council likely will attempt to make the act fully effective after October 1, 2020.
Assuming the Council is able to meet its October 1, 2020 target date for funding the act, DC employees would be eligible for the paid leave benefit during the upcoming 2020 general election—which would also include the DC and Maryland in-person early voting periods currently scheduled to begin on October 19 and October 22, 2020, respectively.[3]
DC employers should immediately review and modify their leave policies to incorporate the new paid leave benefit. Employers should also begin developing plans and procedures to administer voting leave requests that do not interfere with employee rights while also permitting the business to continue to operate smoothly. Finally, employers should remain alert for publication of the mandated poster by the DC Board of Elections as well as regulations that may provide further guidance on requirements under the act.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Washington, DC
Lincoln O. Bisbee
Jocelyn R. Cuttino
[1] The act also provides eligible DC students with an excused absence of at least two hours to vote in person.
[2] According to the act’s financial impact statement, additional funding is required for educational and enforcement purposes.
[3] Virginia does not currently provide for in-person early voting.