Employers and employees will be happy to know that provision exists in law to facilitate time off from work for employees to vote in tomorrow's general election.
The time-off provision can be applied to create as minimal an impact on business productivity as possible. There is, however, no provision in law for employees who seek time off from their ordinary places of work to act as election officers.
Regulations made under the Representation of the People Act require every employer to permit employees to be absent from their work on polling day for three hours.
This provision, however, does not apply to those whose work begins after 10:00 am or concludes before 2:00 pm on polling day. An employee's lunch time is not included within the three-hour window provided for by the regulation.
On a straightforward reading of the provision, it may appear that on September 3, 2020, all employees will be entitled to be off the job for up to four hours (inclusive of their regular lunch time).
This may be a frightening prospect for many places of business which depend on a healthy staff complement to keep their operations running smoothly.
However, a closer reading of the regulation may reveal that the situation is not so dire.
Firstly, though the language of the regulation refers generally to employees, the time-off provision may not apply broadly to all workers. In interpreting the regulations, one may consider that the purpose of the provision is to allow employees time to exercise their right to vote, but this right only exists for individuals who are duly registered to vote under the Act.
An employee who is not registered to vote, and therefore does not have a right to vote, cannot seek to exercise the benefit of a legal provision which exists to facilitate the free exercise of that right; that employee does not fall within the class of people contemplated by Parliament to benefit from time off to vote, since they are not eligible to vote at all.
Rather than giving blanket permission for members of staff to be absent from work on September 3, an employer may first verify whether their employee is registered to vote. They may do so by using the online voters list on the Electoral Commission of Jamaica website by entering their employees' full name and date of birth – information which virtually all employers would already have on their personnel files.
The business' operations could be spared much unwanted disruption by applying the right to workers who are duly registered voters, as opposed to applying it to all employees, notwithstanding their status.
The right to time off to vote extends to the employee once he or she is registered to vote. The employer cannot sanction an employee who took time off from work but, though registered to vote, decided not to do so.
The employee must be able to exercise their right freely. The employee may decide – even at the last minute – that they no longer wish to cast a ballot; this choice is a feature of the right to vote as well.
An employer who runs the risk of having their business short-staffed on election day, due to many of their employees being registered to vote, may seek to agree with their employees on a schedule which allows each registered employee an allotted three hours from work, while ensuring that the business does not become understaffed throughout the day. It may be successfully argued that the language of the Act does not require agreement; that by use of the word permit, the legislation reserves to the employer a discretion to choose the three-hour time frame in which a specific employee may go to vote.
Notwithstanding this, the more pragmatic approach is to ensure that workers are satisfied that there are no issues with the time allotted to them. If the employee has genuine issues, for example, the availability of timely transportation to their designated polling station, and these issues are not considered and accommodated for in the employer's arrangements, the argument may be made that the employer has infringed the employee's right to vote.
The law, however, does not give a right to time off from their regular work to employees who are contracted to serve as election officers, or election day workers. In the absence of specific time-off provisions, an employee who is interested in election day work may take the day as part of their vacation leave entitlement. An employee who is absent from work without leave, or without otherwise obtaining the permission of their employer, may face disciplinary sanctions for this – even if their reason is that they were serving as an election day worker.
Matthew Royal is an associate at Myers, Fletcher & Gordon, and is a member of the firm's Litigation Department. Matthew may be contacted via firstname.lastname@example.org or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.