What Manufacturing Employers Need to Know About Voting in the Time of COVID-19KAM
By Ashby Angell
Something on everyone’s mind as we get closer to November is the 2020 General Election. This year, however, at least one thing might look a little different than it did in 2016: voting. As with many other things, COVID-19 or the “coronavirus” has thrown a wrench into Kentucky’s voting plans as COVID-compliant changes are being implemented across the country. Some states are expanding voting by mail, others are changing the number of polling places, and we’ve probably yet to see other approaches. With the election drawing near, manufacturing employers may be wondering about how the intersection between coronavirus and employees’ right to vote will work.
On an ordinary Election Day, Kentucky polls typically open at 6:00 a.m. and close at 6:00 p.m. Many employees choose to vote before or after work, so leave for voting never becomes an issue for them. Employees who work during voting hours, however, may struggle to get to the polls. Kentucky law requires employers to grant employees at least four (4) unpaid hours off to vote. Employers may reserve the right to select the hours employees are excused, and they may ask employees to provide notice prior to Election Day if they will need time off to vote.
This year, because of the coronavirus, things were a bit different for the primary elections and some of those differences may carry over into November. Kentucky delayed its primary elections from May 19, 2020 to June 23, 2020, but moving the date is not an option for the General Election. During the primaries, Kentucky also drastically reduced the number of in-person polling places, from more than 3,000 to just 170. In fact, Kentucky provided only one polling location in each of its two most populated counties, Jefferson and Fayette. Many employees were off work or working remotely in June, and fewer people vote in states’ primaries to begin with, so accommodating employees’ voting needs may have been less of an issue than that it could be in November.
If Kentucky limits the number of polling places for the General Election, employees may expect to spend more time at the polls than they have in the past. Voting in the General Election this year does not, however, necessarily have to be done in-person. Kentucky Governor Andy Beshear and Secretary of State Michael Adams agreed to expand the Commonwealth’s absentee voting rules for the General Election, to allow Kentuckians to vote absentee by mail if they are concerned about contracting or spreading COVID-19 by voting in-person. Starting October 13, Kentuckians will also have the option of casting an early ballot in-person. Kentucky polls will be open Monday through Saturday for in-person voting in the weeks leading up to the election.
Kentucky employers may ask: “Do I have to give my employees leave on Election Day if they have an option to vote by mail?” The answer is, simply, yes. Kentucky does not allow employers to mandate that their employees vote by mail or vote early in-person, and Kentucky employers cannot deny leave for in-person voting if an employee chooses not to vote by mail. Employers may, however, encourage voting early in-person and/or by mail. Employers may lawfully encourage this by reminding employees of the limited numbers of polling places and the elevated risk of COVID-19 exposure associated with crowds. Employers also may appeal to employees’ better nature by explaining the burden voting leave places on co-workers and (potentially) customers. Employers must not, however, cross the line from “encouragement” to threats or demands.
Kentucky manufacturers should be prepared for an unusual election season and an eventful November 3, 2020. If you start planning now and educating employees regarding their options, you should be able to minimize your (and your employees’) frustrations on Election Day.
This article provides an overview of certain legal issues. It is not intended, and cannot be construed, as legal advice for any purpose. For more information, contact an attorney in the Louisville, Kentucky, office of Fisher Phillips at (502) 561-3990.