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Governor Cuomo recently signed legislation that, effectively immediately, prohibits discrimination based on an 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.” Notably, this new State law provides even broader protections for employees than a similar 2019 New York City law.

Specifically, this new State law – codified as 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 without the employee’s prior informed affirmative written consent;
• discriminating or taking any retaliatory action against an employee with respect to compensation, terms, conditions or privileges of employment because of the employee’s (or the employee’s dependent’s) reproductive health decisions; and
• requiring an employee to sign a waiver or other document which purports to deny the employee the right to make their own reproductive health care decisions.

Effective as of January 7, 2020, the law requires any employer that provides employees with an employee handbook to include a “notice of employee rights and remedies” under this new law in the handbook. This will necessitate a revision to virtually all employers’ handbooks.

Notably, the consequences for violating the law are significant. For one, employees have a private right of action against employers for alleged violations and can obtain (among other things) back pay, benefits, reasonable attorneys’ fees, reinstatement, and injunctive relief. In addition, a court may award liquidated damages equal to one hundred percent of the damages award, unless the employer can prove a good faith basis to believe its actions complied with the law. Finally, an employee subject to retaliation under the law may receive a separate civil penalties award.

The New York State Department of Labor is expected to issue guidance regarding what exactly must be included in the required notice described above, but, in the interim, employers should begin revising their employee handbooks and reviewing their employee privacy practices to ensure compliance with the provisions of the law.

For more information on the topic discussed, contact:

• Joel A. Klarreich  |  jak@thsh.com  |  212-508-6747
• Jason B. Klimpl  |  klimpl@thsh.com  |  212-508-7529
• Elizabeth E. Schlissel  |  schlissel@thsh.com  |  212-508-6714
• Andrew W. Singer  |  singer@thsh.com  |  212-508-6723
• Stacey A. Usiak  |  usiak@thsh.com  |  212-702-3158
• Andrew P. Yacyshyn  |  yacyshyn@thsh.com  |  212-508-6792