New York State Bans Discrimination and Retaliation Based on Reproductive Health Decision Making and Requires Changes to Employee Handbooks

On Nov. 8, 2019, New York State Governor Andrew Cuomo signed into law an amendment to the New York Labor Law, which is effective immediately and prohibits employers from discriminating or retaliating against employees based on an “employee’s or a dependent’s reproductive health decision making.” As we previously reported this year, the New York City Human Rights Law was amended to include “sexual and other reproductive health decisions” as an employee characteristic protected from discrimination. The New York State law provides much greater protections for employees than does the New York City law, as well as providing for potentially extensive damages and penalties. It also requires that employers amend their handbooks to set forth employee rights and remedies under the new law.

The new section 203-e of the New York Labor Law 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
• Discriminating or retaliating against an employee with respect to compensation, terms, conditions or privileges of employment based on the employee’s or the employee’s dependent’s reproductive health decision making, including but not limited to a decision to use or access a particular drug, device or medical service
• Requiring an employee to sign a waiver or other document that denies the employee the right to make the employee’s own reproductive health care decisions

The law defines retaliation as “discharging, suspending, demoting, or otherwise penalizing an employee” for “(a) 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; (b) causing to be instituted any proceeding under or related to this section; or (c) 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.”

Private Right of Action and Penalties

The law also gives an employee the right to bring a civil action in any court of competent jurisdiction against an employer alleged to have violated the law. Available remedies include: (a) damages, including, but not limited to, back pay, benefits and reasonable attorneys’ fees and costs; (b) injunctive relief; (c) reinstatement; and (d) liquidated damages equal to 100 percent of the award for damages, unless an employer provides a good faith basis to believe that its alleged violations were in compliance with the law.

Moreover, an employer can be subject to a separate civil penalty for any act of retaliation against an employee for exercising any rights under the law.

Handbook Requirement

Notably, the law also requires employers with handbooks to include a “notice of employee rights and remedies under this section” by Jan. 7, 2020. The state has not issued any guidance about the required form of the notice.

Next Steps

Employers must update their handbooks and amend their policies to ensure compliance with the new law by Jan. 7, 2020.

For questions or concerns regarding compliance with this new law, please contact a member of Kramer Levin’s Employment Department.