The state of New York adopted a new section of the New York Labor Law in November 2019.  Under the immediately effective provisions of
Section 203-e, an employer cannot:

• access an employee’s personal information about the employee’s or a dependent’s reproductive health decision-making without prior written consent of the employee; or
• discriminate or retaliate against an employee with respect to compensation, terms, conditions, or privileges of employment because of, or on the basis of, the employee’s or their dependent’s reproductive health decision-making.

The term “reproductive health decision-making,” includes but is not limited to a decision to use or access a particular drug, device, or medical service.

Employers who are self-insured should take particular care to establish safeguards to prevent access to employees’ reproductive health information by those who are not involved in handling benefit determinations.

Section 203-e also requires that employers that provide an employee handbook to their employees “must include” in such handbook notice of employee rights and remedies under this section. In light of this requirement, New York employers that use employee handbooks should add specific notice language to their handbooks. The deadline for complying with the handbook requirement in Section 203-e is January 7, 2020.

An employee who alleges an employer has violated Section 203-e may bring a civil action against the employer in any court of competent jurisdiction, which may award damages, injunctive relief, reinstatement, and/or liquidated damages. Liquidated damages will equal 100 percent of the damages award unless the employer proves it had a good-faith basis to believe its actions complied with the law. In addition, separate civil penalties are available if an employer is found to have engaged in retaliation or retaliatory personnel action against an employee for exercising rights under Section 203-e.

New York employers should update their employee handbooks to comply with Section 203-e.