New York Employers Must Update Employee Handbooks to Provide Notice of Ban on Discrimination Based on Reproductive Health Decisions

Arent Fox

Arent Fox

Time is of the Essence: Effective January 7, 2020, New York employers who have an Employee Handbook must include in the Handbook a notice of employees’ rights to be free of discrimination and retaliation on the basis of their or their dependents’ reproductive health decisions.

Reproductive health decision making includes, but is not limited to, an employee’s or his/her dependent’s use or access a particular drug, device, or medical service. The Handbook notice requirement is just one provision of the law, codified in the New York State Labor Laws in Section 203-e, which took effect in November of 2019. Under the law, employers are also prohibited from the following:

  • Accessing an employee’s personal information regarding the employee’s or the employee’s dependent's reproductive health decision making, without the employee’s prior informed affirmative written consent;
  • Discriminating or taking any retaliatory personnel action against an employee with respect to compensation, terms, conditions or privileges of employment because of or of the basis of the employee’s or the employee’s dependent’s reproductive health decision making;
  • Requiring an employee to sign a waiver or other document that purports to deny an employee the right to make their own reproductive health care decisions; and
  • Retaliating against an employee (including discharging, suspending, demoting, or otherwise penalizing an employee) for exercising any rights under the statute.

The law provides employees with a private cause of action. Employers who violate the law may be subject to the following:

  • Damages, including, but not limited to, back pay, benefits, and reasonable attorneys’ fees and costs incurred to a prevailing plaintiff;
  • Injunctive relief against any employer that commits or proposes to commit a violation of the provisions of this section;
  • Reinstatement; and/or
  • Liquidated damages equal to one hundred percent of the award for damages unless an employer proves a good faith basis to believe that its actions were in compliance with the law.

In addition to ensuring Handbook compliance, New York employers should educate all human resources personnel, managers and supervisors of this new legal protection.

For the full text of the statute, click here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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