On April 27, 2020, the District of Columbia enacted the Leave to Vote Amendment Act of 2020. Once the D.C. government funds the new law, it will grant all D.C. employees paid leave to vote in person and will grant students a two-hour excused absence to vote in person.
With this law, D.C. joins 20 states that mandate some form of paid voting leave (Alabama, Alaska, Arizona, Colorado, Georgia, Hawaii, Illinois, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma and Utah) and two states that mandate some form of unpaid voting leave (Vermont and Wisconsin).
Below is a summary of the key provisions of the new D.C. law as it pertains to employees and students.
Paid Voting Leave for Employees
Paid Leave. Upon an employee’s request, an employer must provide the employee at least two hours of paid leave to vote in person in any public election in D.C. Employees ineligible to vote in D.C. may also receive two hours of paid leave to vote in person in any election run by the jurisdiction in which the employee is eligible to vote.
Covered Employees. The new law broadly defines “employee” to include all employees eligible to vote and covers every “employer.” The presumption against extraterritorial application of laws suggests — although the law is silent — that the new law will apply only to employees who work in D.C. and could potentially include teleworkers; i.e., both those physically working in D.C. but reporting elsewhere, and those physically elsewhere but reporting in to D.C. The Board of Elections may clarify these issues when it publishes regulations interpreting the new law.
Employee Notice. Employers can require that employees requesting voting leave provide notice to the employer a reasonable length of time in advance. The law does not provide the amount or form of the notice.
Employer Designation of Leave. Employers may specify the hours during which an employee may take voting leave. This means an employer can require employees to take voting leave during an early voting period instead of on the actual day of the election, or can grant voting leave at the beginning or end of an employee’s working hours.
Retaliation Prohibited. Employers are prohibited from: (1) deducting from an employee’s salary, wages or accrued leave for paid voting leave; (2) interfering with, restraining or denying any attempt to take paid voting leave; and (3) retaliating against an employee for taking paid voting leave.
Employer Notice Requirements. Each employer must post a notice in a conspicuous place that includes an easily understood description of the new law. The poster will be developed by the D.C. Board of Elections. For the 2020 election, the required poster is available here.
Violations. The new law does not provide a private right of action.
Excused Absences for Student Voters
Excused Absence to Vote. Students are eligible for an excused absence of at least two hours to vote in person in any public election. Students ineligible to vote in D.C. are still entitled to a two-hour excused absence to vote in person in any election run by the jurisdiction in which the student is eligible to vote.
Covered Schools and Students. All students enrolled in an “educational institution” and eligible to vote are covered by the new law. An “educational institution” means “any school in the District of Columbia Public Schools system, a public charter school, an independent school, a private school, a parochial school, or a private instructor in the District.”
Restrictions on Absences. Schools can specify the hours during which students may take the absence. For example, schools can require that students take voting absence during an early voting period instead of on the actual day of the election.
Notice Requirements. The new law is silent regarding any notice a school must provide to a student regarding a student’s rights under this law and regarding any advance notice a student must provide regarding the student’s request for time to vote.
Violations. The new D.C. law does not provide a private right of action.
Effective Date. The law will not go into effect until its fiscal effect is included in an approved budget and financial plan. Until that time, this law is considered unfunded and, therefore, not in effect.
Update: On Aug. 19, 2020 the passage of Act 23-404 removed the conditions on the Leave to Vote Amendment Act of 2020’s effective date.
Conclusion
D.C. employers and schools should review their leave policies and procedures now and develop a plan to provide employees and students with leave for voting under the new law once it takes effect. For additional information about paid leave laws in D.C., contact the authors of this article or another member of the McGuireWoods labor and employment team.