New York State amended its labor law by adding Section 203-3 declaring that employers may “not discriminate or take retaliatory personnel actions against an employee” on the basis of the employee’s or their dependent’s “reproductive health decision making.” According to the law, employers are prohibited from the following:
- Accessing an employee’s, or dependents, personal information about reproductive health decisions without informed consent;
- Discriminating or retaliating against an employee through “compensation, terms, conditions, or privileges of employment” on the basis of their reproductive health decision making;
- Retaliating against an employee (including discharging, suspending, demoting, or otherwise penalizing an employee) for exercising any rights under the law;
- Requiring an employee “to sign a waiver or other document” denying their “right to make their own reproductive health care decisions”
The text of the law does not define the term “reproductive health decision making” but states that it includes, but is not limited to: “the decision to use or access any particular drug, device or medical service” as it relates to reproductive health.
Handbook Notice Requirement Takes Effect January 7, 2020
Employers that provide an employee handbook are required to include a notice of the employee’s rights and remedies under the new law effective January 7, 2020. Although, the New York State Department of Labor has yet to issue guidance or make a model notice available, employers should review their employee handbooks and include reproductive decisions as a protected category and be sure to amend any policies with respect to ensuring medical records remain private and .
Private Right of Action The law allows employees to bring a civil action in court for any violation. Employee remedies against any employer that violates the law include, but are not limited to, back pay, benefits and reasonable attorneys’ fees and costs, as well as injunctive relief and/or reinstatement. The new law also provides for civil penalties for retaliation against an employee for bringing a complaint under the law.
Employer Action Items:
- Ensure handbook notices are updated
- Educate supervisors and human resources personnel on the law
- Ensure supervisors and human resources personnel do not make employment decisions based on reproductive health choices.
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