Under the newly adopted Section 203-e of the New York State Labor Law, all businesses with employees in New York state must update their employee handbooks by January 7, 2020, to include a new notice of an employee's rights and remedies prohibiting discrimination and retaliation “based on an employee's or a dependent's reproductive health decision making.”
The new law comes less than a year following the passage of a similar amendment to New York City's Human Rights Law, adding “sexual and other reproductive health decisions” to the City's list of protected categories. The new law, however, is more extensive than New York City's statute.
Prohibited Conduct
The new law prohibits employers from:
- Accessing an employee's personal information regarding the employee's or the employee's dependent's reproductive health decision making, including but not limited to, the decision to use or access a particular drug, device or medical service without the employee's prior informed affirmative written consent.
- Engaging in discrimination or retaliatory action against an employee with respect to “compensation, terms, conditions or privileges of employment because of or on the basis of the employee's or dependent's reproductive health decision making, including but not limited to, a decision to use or access a particular drug, device or medical service.”
- Requiring an employee to sign a waiver or other document that denies an employee the right to make their own reproductive health care decisions, including but not limited to, the decision to use of a particular drug, device or medical service.
The law defines retaliation as: “discharging, suspending, demoting, or otherwise penalizing an employee” for:
- Making or threatening to make, a complaint to an employer, co-worker, or public body, that rights under Section 203-e have been violated.
- Causing to be instituted any proceeding under or related to this section.
- Providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry into a violation of a law, rule or regulation.
Private Right of Action
Employees may bring a civil action in any court of competent jurisdiction for violations of the law. The remedies available to a successful plaintiff include back pay, benefits, reasonable attorneys' fees and costs, injunctive relief, reinstatement, and liquidated damages “equal to one-hundred percent of the award for damages,” unless the employer proves a good faith basis to believe that its actions in violation of the law were in compliance with the law.
Employee Handbook Notice Requirement
Under the new law, “[a]n employer that provides an employee handbook to its employees must include in the handbook notice of employee rights and remedies under [Section 203-e].” The New York State Department of Labor has yet to issue any guidance as to the requisite notice. Nonetheless, by January 7, 2020, employers should amend their employee handbooks to include reproductive health decisions as a protected category, to state affirmatively that discrimination and retaliation based on reproductive health decisions are prohibited, and to confirm that medical records will remain confidential.
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