Ontario’s provincial general election is scheduled for June 7, 2018. With this in mind, Ontario employers may want to be mindful of their obligations with respect to employee voting rights on Election Day. This means not only understanding what the law requires of employers but also what it does not require, as employees often have misconceptions about what their rights are.
Three Consecutive Hours for Voting
Ontario’s Election Act, R.S.O. 1990, c. E.6, requires that employees who are qualified to vote have three consecutive hours free from work in order to vote and that an employee’s pay cannot be reduced in order to comply with this rule. The following requirements are listed under sections 6(3)–(5) of the Act:
Employees to have three consecutive hours for voting
(3) Every employee who is qualified to vote shall, while the polls are open on polling day at an election, have three consecutive hours for the purpose of voting and, if the hours of his or her employment do not allow for three consecutive hours, the employee may request that his or her employer allow such additional time for voting as may be necessary to provide those three consecutive hours and the employer shall grant the request . . .
Deduction from pay prohibited
(4) No employer shall make any deduction from the pay of any employee or impose upon or exact from the employee any penalty by reason of his or her absence from work during the consecutive hours that the employer is required to allow under subsection (3) . . .
Time off best suiting convenience of employer
(5) Any time off for voting as provided in subsection (3) shall be granted at the time of day that best suits the convenience of the employer.
The polls in most of Ontario’s electoral districts will be open for 12 hours on Election Day (many are open from 9:00 a.m. to 9:00 p.m., but some may be open at different times). This means that employers may not need to modify employees’ schedules to provide time off work for voting if their employees work typical eight-hour days during regular business hours.
There are a number of common misconceptions about employee voting rights in Ontario. They include the following:
1. That the employer must provide all employees three paid hours off work during regular working hours to vote regardless of whether the employee’s work schedule permits sufficient time to vote
a. For example, if an employee who works from 9:00 a.m. to 5:00 p.m. in an electoral district where the polls are open until 9:00 p.m. asks to take three hours off work between 9:00 a.m. and 5:00 p.m. to vote, his or her employer may refuse this request. This is because the employee has at least three consecutive hours free from work while the polls are open (from 5:00 p.m. until the polls close at 9:00 p.m.). In this case, the employer does not need to provide the employee with paid time off from work to vote.
2. That the employee may choose to take three hours of consecutive leave at his or her convenience to vote when he or she does not have sufficient time outside of working hours to vote
a. This is incorrect. Even where employers are required to provide an employee with time off during working hours to vote, the employer may decide how to modify the employee’s working hours.
3. That the employer must provide a full three hours of working time off with pay if the employee’s regular schedule does not provide him or her with three consecutive nonworking hours to vote
a. This is a half-truth. Although an employer will need to modify a work schedule that does not permit three consecutive nonworking hours to vote while polls are open, the employer only needs to modify that schedule enough so that three hours to vote are provided while polls are open. For example, if polls are open from 9:00 a.m. to 9:00 p.m. and an employee is scheduled to work from 10:00 a.m. to 8:00 p.m., the employer may comply with the Election Act in a number of different ways, including by:
i. permitting the employee to commence work at 12:00 p.m. (giving the employee from 9:00 a.m. to 12:00 p.m. to vote);
ii. permitting the employee to take three hours off during the workday to vote (e.g. allowing the employee to take three hours off from 12:00 p.m. to 3:00 p.m.); or
iii. permitting the employee to leave work early at 6:00 p.m. (giving the employee from 6:00 p.m. to 9:00 p.m. to vote).
Employers may want to ensure that they are ready to address these misconceptions, as many employees believe they have the right to choose a three-hour window during their regular working day in which to vote, regardless of whether their existing schedule permits them adequate time to vote.
Returning Officers and Other Poll Officials:
The Election Act permits an employee who serves as a returning officer under the Act or who has been appointed by a returning officer to be a poll official to an unpaid leave of absence to perform his or her duties. Such an employee must give his or her employer seven days’ notice before commencing the leave. An employer is prohibited from dismissing or otherwise penalizing an employee for taking this leave.