A recently-enacted amendment to the New York Labor Law prohibits employers from discriminating against employees on the basis of employees’ or their dependents’ “reproductive health decision making.” The law took effect on November 8, 2019.

Mandatory Handbook Update

The new law comes with a mandatory notice requirement. Effective January 7, 2020, employers must include a notice of employees’ rights under the new law in employee handbooks.

Non-Discrimination Requirements of New Law

The amendment creates a new anti-discrimination section under the New York Labor Law—not the New York Human Rights Law, which is the state’s primary employment discrimination law. The law defines “reproductive health decision making” to include employees’ or their dependents’ “decision to use or access a particular drug, device or medical service.”

The new law carries these prohibitions:

• Employers may not “access” an employee’s personal information or their dependent’s personal information regarding their reproductive health decision making without prior written consent.
• Employers may not require employees to sign a document that would waive the employee’s right to make their own reproductive health care decisions.
• Employers may not discriminate or retaliate against employees based on the employee’s or their dependent’s reproductive health decision making.

Violation of New Law

The law carries strict penalties for employer violations. Employees alleging a violation under the new law may file suit in court immediately, rather than first filing an administrative complaint with the State Division of Human Rights.

The law authorizes courts to award monetary damages, awards for back pay, reinstatement to employment and attorneys’ fees to prevailing plaintiffs. Courts may also award liquidated or “double” damages if an employer fails to provide a good-faith basis for their actions.

Complying with New Law

Employers should ensure that management personnel are aware of the new law’s requirements. Employers should also take steps to update their employee handbooks. New York’s Department of Labor has not published a model “notice” of employee rights to include in handbooks, but guidance on what constitutes notice may be pending.