New Labor Law prohibits discrimination against employees on the basis of reproductive health decisions

If you employ individuals in your office such as secretary/receptionist/office manager or assistant that schedules patient appointments, greets patients, retrieves medical records, performs recordkeeping and/or bookkeeping activities or performs any other function in your office; and

If you provide your employees with an employee handbook outlining office employment policies, responsibilities, duties, working hours, vacation time, office dress and decorum and other office policies – and every office should supply employee with a manual of such policies;

A new law enacted November 8, 2019, added a new section to New York’s labor laws effective immediately that prohibits an employer from discriminating against an employee or her dependents based on the employee’s “reproductive health decision making.” This follows on the heels of a new law adopted by the New York City Council in December 2018 that amended the City’s Human Rights Law that prohibited discrimination against one or more employees on the basis of family planning services – e.g., fertility-related medical procedures, sexually transmitted disease prevention, testing, and treatment, and family planning services and counseling, such as birth control drugs and supplies, emergency contraception, sterilization procedures, pregnancy testing, and abortion, and reproductive health services.

Chapter 457 of the Laws of 2019 added a new section - §203-E – to the state’s labor laws that prohibits an employer “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.”

The new law not only prohibits discrimination but also forbids retaliatory actions taken against an employee, and prohibits an employer from requiring an employee to sign a waiver of her rights to her reproductive health care decisions, including use of a particular drug, device, or medical service under the law. The terms “act of retaliation” are defined broadly under the new law. Employees can bring a civil action against an employer for a violation of these rights.

Employers with employees in New York should be aware that this new law actually took effect November 8, 2019, the day the measure was signed. Importantly, the law requires that if an employer “provides an employee handbook to its employees” the employer “must include in the handbook [a] notice of employee rights and remedies under section 203-E” of the state’s labor law. At present, the NYS Labor Department has not issued any new rules outlining the Department’s approach to the regulation and its enforcement but pundits reading administrative tea leaves expect those regulations will be forthcoming in due course.

A copy of § 203-E of the Labor Law is attached for your reference.

Chapter 457 of the Laws of 2019 added a new section to New York’s Labor Laws as follows:
§ 203-e. Prohibition of discrimination based on an employee's or a dependent's reproductive health
decision making.

  1. An employer shall be prohibited 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.
  2. An employer shall not:
    1. discriminate nor take any retaliatory personnel 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; or
    2. require an employee to sign a waiver or other document which purports to deny an employee the right to make their own reproductive health care decisions, including use of a particular drug, device, or medical service.
  3. An employee may bring a civil action in any court of competent jurisdiction against an employer alleged to have violated the provisions of this section. In any civil action alleging a violation of this section, the court may:
    1. award damages, including, but not limited to, back pay, benefits and reasonable attorneys' fees and costs incurred to a prevailing plaintiff;
    2. afford injunctive relief against any employer that commits or proposes to commit a violation of the provisions of this section;
    3. order reinstatement; and/or 
    4. award liquidated damages equal to one hundred percent of the award for damages pursuant to paragraph (a) of this subdivision unless an employer proves a good faith basis to believe that its actions in violation of this section were in compliance with the law.
  4. Nothing in this section shall be construed to limit any rights of an employee provided through any other provision of law, common law or collective bargaining unit.
  5. Any act of retaliation for an employee exercising any rights granted under this section shall subject an employer to separate civil penalties under this section. For the purposes of this section, retaliation or retaliatory personnel action shall mean discharging, suspending, demoting, or otherwise penalizing an employee for:
    1. making or threatening to make, a complaint to an employer, co-worker, or to a public body, that rights guaranteed under this section have been violated;
    2. causing to be instituted any proceeding under or related to this section; or
    3. providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry into any such violation of a law, rule, or regulation by such employer.
  6. An employer that provides an employee handbook to its employees must include in the handbook notice of employee rights and remedies under this section.
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