In the last few years, the New York Legislature has enacted many new protections for employees in New York State. This year is no exception. On January 7, 2020, New York Labor Law section 203-E became effective. It concerns employer obligations with respect to the reproductive health decision-making of employees and their dependents.
The new law prohibits an employer from accessing personal information regarding the reproductive health decision-making of employees and their dependents, 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. Such information could be available to the employer through, for example, health insurance records or employee submissions under the Family Medical Leave Act.
To the extent an employer does become aware of information concerning the reproductive health decision-making of employees and their dependents, it is prohibited from discriminating or take any retaliatory action against an employee with respect to compensation, terms, conditions, or privileges of employment on the basis of such decision-making. For the purposes of this law, retaliatory actions include discharging, suspending, demoting, or otherwise penalizing an employee for: (i) making or threatening to make, a complaint to an employer, co-worker, or to a public body, that rights guaranteed under Labor Law section 203-E have been violated; (ii) causing to be instituted any proceeding under or related to section 203-E; or (iii) 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.
Employers are also forbidden from requiring an employee to sign a waiver or other document which purports to deny an employee the right to make their own reproductive health care decisions, including use of a particular drug, device, or medical service.
The new law permits employees to bring civil actions for alleged employer violations. If an employee proves his or her case, the court may (i) award damages, including, but not limited to, back pay, benefits and reasonable attorneys’ fees and costs incurred by the employee; (ii) afford injunctive relief against any employer that commits or proposes to commit a violation of the law; (iii) order reinstatement of a terminated employee; and/or (iv) award liquidated damages unless an employer proves a good faith basis to believe that its actions were in compliance with the law.
All employers who provide employee handbooks to their employees were required to give notice to their employees of their rights and remedies under Labor Law Section 203-E by January 7, 2020. Employers who have yet to do so should act immediately.