In January 2019, the New York Legislature passed a bill banning employment discrimination based on reproductive health decisions. The bill passed with bipartisan, though not unanimous, support. Governor Cuomo signed the bill into law on November 8, 2019, and it took effect immediately.

Rationale for the New Law

In December 2018, the New York City Council added “sexual and other reproductive health decisions” to the list of protected categories under the New York City Human Rights Law.  Following New York City’s lead, the NYS Legislature has added a new section 203-e to the New York State Labor Law.

The Legislative sponsors of the law expressed concern that:

“While federal and state laws have been enacted which demonstrate a commitment to protect individuals against employment discrimination, loopholes exist which leave employees vulnerable to discrimination based on their reproductive health decisions.”

New Legal Protections for Employee Reproductive Health Decisions

No Access

Employers may not, without the employee’s prior informed written consent, access personal information regarding employees’ or their dependents’ reproductive health decisions. That includes their use of or access to drugs, devices, or medical services.

No Discrimination

Even if they legally obtain information regarding reproductive health decisions, employers may not discriminate against an employee with respect to compensation or other terms and conditions or privileges of employment based on such information.

No Waivers

An employer is not authorized to require an employee to sign a waiver of these rights. This includes any document purporting to deny an employee the right to make their own reproductive health care decisions.

Penalties

Under the law, an employee may bring a civil lawsuit against a violating employer. The court may award damages, including back pay, benefits, reasonable attorney’s fees and costs.

The court could award injunctive relief against any employer that violates or proposes to violate the provisions of this section. A court could even reinstate the employee to their job.

The new section of the law does not limit any rights of an employee under any other provision of law or contract.

Prohibited Retaliation

Employers may not retaliate against an employee for exercising their rights under this law.

Retaliation includes discharging, suspending, demoting, or otherwise penalizing an employee for any of the following:

• making or threatening a complaint against an employer, co-worker, or public body that violated this law;
• initiating or filing a legal claim under or related to this law; or
• providing information to or testifying before any public body conducting an investigation, hearing, or inquiry into any such violation.

Employee Handbooks

The new law requires employers with employee handbooks to include a notice of these employee rights and remedies. This is a relatively unusual requirement among employment laws, but perhaps a developing trend in New York.

Act Now

With this law already in place, employers must ensure that human resources personnel and managers are aware of these new legal parameters. Companies with employee handbooks must update them promptly.

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