Employers Required to Provide Notice Under New York State Reproductive Health Bias Law Following Second Circuit Ruling Vacating Injunction

On Jan. 2, 2025, the U.S. Court of Appeals for the Second Circuit in CompassCare v. Hochul vacated a lower court’s injunction that had forestalled implementation of a requirement under New York’s reproductive health bias law, codified at Labor Law Section 203-e (the Act), that employers notify employees of their rights under the Act to be free from discrimination or retaliation based on employees’ or their dependents’ reproductive health decision making. New York employers that use employee handbooks are now required to include such a notice in their handbook. 

The Second Circuit’s recent ruling arises from a dispute regarding employers’ obligations to provide their employees with notice of their rights under the Act, titled “Prohibition on discrimination based on an employee’s or a dependent’s reproductive health decision making,” which became effective Jan. 7, 2020. The law was intended to “ensure[] that employees or their dependents are able to make their own reproductive health care decisions without incurring adverse employment consequences.” (See New York State Assembly Bill A584 Summary, Senate Bill 660 Bill Summary; Sponsor Memo).

Previously, the U.S. District Court for the Northern District of New York issued a permanent injunction that halted enforcement of the Act’s notice requirement. The district court held that the notice provision violated the First Amendment rights of the plaintiffs, three religious organizations, by compelling them to publish a message that conflicted with their mission and was not sufficiently narrowly tailored to achieve a compelling state interest. (CompassCare v. Cuomo, 594 F. Supp. 3d 515 (N.D.N.Y. March 29, 2022)). In lifting the injunction, the Second Circuit held that requiring employers that use a handbook to include a notice of employee rights and remedies under the Act did not violate the plaintiffs’ First Amendment rights. 

New York’s Reproductive Health Bias Law (N.Y. Lab. Law § 203-e)

Under the Act, an employer is not permitted to “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.” The Act also prohibits employers 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.” Importantly, the Act requires employers that provide an employee handbook to employees to include in the handbook a notice of the employees’ rights and remedies under the Act. Employees claiming a violation of the Act may file a civil action and can recover (i) damages, including back pay and attorneys’ fees and costs; (ii) injunctive relief; (iii) reinstatement; and/or (iv) liquidated damages. The Act also permits civil penalties against an employer that retaliates against an employee for exercising rights under the Act. 

Takeaways for Employers

Effective immediately, New York employers that provide an employee handbook or similar compendium of policies to employees must include a notification to employees of their rights and remedies under the Act. 

For questions or concerns regarding this alert, please contact a member of Kramer Levin’s Employment Law Department.