DATE:            February 20, 2020

TO:                 New York Clients

FROM:          Labor and Employment Law Department

RE:                 New York Bans Accessing Employees Reproductive Health Information and Requires an Update to Handbooks

As a reminder, effective immediately, New York State enacted a law banning discrimination in the workplace based on an employee’s reproductive health decision making. Unlike New York City, the State law goes a step further in several respects:

• Employers cannot access 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 written consent;
• Employers cannot require an employee to sign a waiver or other document which purports to deny the employee the right to make his or her own reproductive health care decisions; and
• Employers must amend their employee handbooks to provide notice to employees of their rights and remedies under the new

While the new law does not provide any other example of “reproductive health decision making” other than what is provided above, New York City’s recent law provides some guidance, as follows:

The term “sexual and reproductive health decisions” means any decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions. Such services include, but are not limited to, 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.

The law provides a private right of action for employees to bring a lawsuit in court against an employer for any violations. Employers may be liable for back pay, benefits,

reasonable attorneys’ fees, and liquidated damages equal to 100% of the amount of any award assessed against the employer. The new law also provides for civil penalties for retaliation against an employee for bringing a complaint under the law. Retaliation is defined as “discharging, suspending, demoting, or otherwise penalizing” an employee for (a) “making or threatening to make a complaint to an employer, a co-worker, or to a public body” that an employer violated the law; (b) “causing to be instituted any proceeding under or related to” the law; or (c) “providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry into any such violation” of the law.

Next Steps

Employers must immediately update their handbooks with a statement of employees’ rights and remedies regarding this law. There is no guidance yet from the State on what form such notice should take but at a minimum, employers should: (i) include reproductive health decisions as a protected category in their employee handbook (many have already done this in May 2019 given New York City’s new law) and (ii) amend employee handbooks by stating that medical records are and will remain private and that retaliation for employee reproductive health decisions is prohibited. We attach to this memorandum a sample notice of rights and remedies. Employers should also train Human Resources employees and managers regarding the new law and ensure that employee medical records are kept separately from other personnel records.

If you have any questions, please do not hesitate to contact David R. Rothfeld, Lois M. Traub, Alexander Soric, Jennifer Schmalz, Jaclyn Ruocco, Joseph Tangredi, Brian Polivy or Robert L. Sacks.

This memo is provided for informational purposes only.

It is not intended as legal advice and readers should consult counsel to discuss how these matters relate to their individual circumstances

NOTICE OF RIGHTS AND REMEDIES REGARDING YOUR REPRODUCTIVE HEALTH DECISION MAKING

 Your Rights

The New York State Labor Law Section 203-e prohibits employers in the State of New York from discriminating against employees based on an employee’s or dependent’s reproductive health decisions, and provides remedies for such violations. Your employer is prohibited from discriminating or retaliating against you based on your, or your dependent’s, reproductive health decision making. Your employer is prohibited from accessing your personal information regarding your or your 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 your prior informed affirmative written consent. Your employer may not require you to sign a waiver or other document which purports to deny you the right to make your own reproductive health care decisions, including the use of a particular drug, device, or medical service.

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.

Your Remedies

 You may bring a civil action in any court of competent jurisdiction against your employer for alleged violations of this law. A 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 unless an employer proves a good faith basis to believe that its actions in violation of this section were in compliance with the law.