Discrimination Based on Reproductive Health Decisions Prohibited in New York

On November 8, 2019, Governor Andrew Cuomo signed new legislation adding Section 203-e to the New York Labor Law, prohibiting employers from discriminating against employees based on their own or a dependent’s reproductive health decision making. Earlier this year, the New York City Human Rights Law was amended to include “sexual and reproductive health decisions” to its ever-growing list of protected categories. However, this new bill imposes increased responsibilities on employers statewide and evidences the State’s continued efforts in protecting employees’ rights and privacy regarding reproductive health decisions. Notably all New York employer’s handbooks must be updated by January 7, 2020 based on a unique provision in the law which requires that handbooks be updated to include employees’ rights and remedies under the new law.

Prohibited Activity

Under the new law, employers are prohibited from: 1) accessing an employee’s personal information regarding the employee’s or an employee’s dependent’s reproductive health decision making (i.e. the decision to use or access a particular drug, device or medical service) without first obtaining an employee’s informed affirmative consent; 2) retaliating against an employee for his or her own reproductive health decision or that of their dependent; and 3) requiring an employee to sign a waiver or document denying the employee the right to make their own reproductive health decision. The bill also establishes that Section 203-e is not to be interpreted as conflicting with any other protections provided by law or a collective bargaining unit.

Employer Responsibilities

The new law further specifies that an employer who provides employees with an Employee Handbook must provide in said Handbook a “notice of the rights and remedies” afforded to employees for a violation of the law. In accordance with the above-listed prohibited activities, an employer must also ensure that it does not discriminate or take retaliatory personnel actions against an employee, which is defined as an action with respect to compensation, terms, conditions or privileges of employment.

Remedies

An employer who violates the provisions of this new law, may be required to compensate the aggrieved employee in the form of back pay, benefits and reasonable attorneys’ fees. In addition, a court may order reinstatement or afford injunctive relief in favor of the employee. A Plaintiff may also be entitled to liquidated damages in an amount equal to 100% of the award for damages, unless the employer can prove a good faith basis to believe that its actions were in compliance with the law. Finally, the law also provides that retaliatory actions against an employee exercising his or her rights under this law may result in separate civil penalties against the employer.

Bottom Line

Most importantly, New York employers must update their Employee Handbooks by January 7, 2020 to include protections against discrimination and retaliation based on reproductive health decisions. Although the bill does not provide much guidance regarding the requirement that employers provide “notice of rights and remedies” in their Handbooks, it is advised that the language be clear and unambiguous. It is also recommended that the update include a complaint procedure, available remedies to employees and an anti-retaliation section.

For more information regarding employment law practices and legal updates, please contact Harris S. Freier, Esq., Partner in the firm’s Employment Litigation Practice Group, at hfreier@genovaburns.com or Dina M. Mastellone, Esq., Partner and Chair of the firm’s Human Resources Counseling & Compliance Practice Group at dmastellone@genovaburns.com or 973-533-0777.