A New York State law, effective as of November 8, prohibits employers from discriminating or retaliating against employees based on an “employee’s or a dependent’s reproductive health decision making,” including, but not limited to, an employee’s decision to use or access a particular drug, device, or medical service. Employers cannot require employees to sign a waiver denying them the right to make their own reproductive healthcare decisions. Employee handbooks should be updated as soon as possible to advise employees of the rights and remedies available under the law.
Following the New York City Council’s addition of “sexual and other reproductive health decisions” as a protected category to the New York City Human Rights Law in 2018, the New York State Legislature passed an expansive bill in early 2019 making reproductive health decisions a protected category under the New York Labor Law. This amendment was signed into law by Governor Andrew Cuomo on November 8, 2019, making it an unlawful act for an employer to discriminate or retaliate against an employee based on the employee’s or the employee’s dependent’s reproductive health decisionmaking. The law specifically defines reproductive health decisionmaking to include, but not be limited to, a decision to use or access a particular drug, device, or medical service for reproductive health. Finally, the law also prohibits employers from requiring an employee to sign a waiver denying the employee the right to make his or her own reproductive healthcare decisions.
Notably, the law specifically requires that, effective January 7, 2020, all employers that provide an employee handbook to their employees include in the handbook a “notice of employee rights and remedies” under the new law. The law also creates a private civil action right that permits employees to bring a civil action in any court of competent jurisdiction if the employee believes the employer violated the law. Further, if the plaintiff prevails, the law specifies that in response to such civil action, the court may award damages, including but not limited to back pay, benefits, and reasonable attorney fees and costs, as well as afford injunctive relief, order reinstatement, and/or award liquidated damages of 100% of the back pay/benefits awarded to the employee.
The law also creates a good-faith affirmative defense to liquidated damages if the employer can prove it believed its action were in compliance with the law. There are separate additional penalties available should an employer retaliate against an employee for exercising any rights provided by the new law.
The law does not limit any rights of employees covered by a valid collective bargaining agreement.
For context, the law was passed in response to a wave of litigation, frequently initiated by employers, to limit or prevent employees from accessing birth control methods that are covered by health insurance plans under the federal Affordable Care Act. In the legislative history of the law, the New York legislature explained its purpose by stating:
While federal and state laws have been enacted which demonstrate a commitment to protect individuals against employment discrimination, loopholes exist which leave employees vulnerable to discrimination based on their reproductive health decisions. The Legislature must ensure that the legal loopholes are corrected to ensure that employees’ decisions about pregnancy, contraception, and reproductive health are also protected under state law.
The legislature further added, “This bill is not about insurance coverage and is not intended to require coverage for any health care service, drug or device.”
In addition to taking effect immediately (and employers should be aware that the law applies to any current requests for benefits that cover birth control or other reproductive rights decisions), the law also specifically requires employers with employee handbooks to include information on the employee rights and remedies provided by the law by January 7, 2020. Thus, we recommend that employers review their handbooks and add appropriate language providing this information. Employers should also consider providing information on the law to managers, supervisors, and human resources personnel, as well as any other employees involved in reviewing or approving medical benefit information, to ensure that no one is making unlawful employment decisions based on an employee’s or his or her dependent’s reproductive health decisions.
If you would like assistance in reviewing current handbook language, have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
New York
Leni Battaglia
Kimberley Lunetta
Melissa Rodriguez
Douglas Schwarz
Kenneth Turnbull