New York employers – New York State has gifted you an early holiday present – a requirement to update your handbook, comply with a new law immediately or potentially face steep consequences.
On November 8, 2019, Governor Cuomo signed into law a bill prohibiting employment discrimination based on an employee’s or a dependent’s “reproductive health decision making,” “including, but not limited to, the decision to use or access a particular drug, device or medical service.” Colloquially known as the “Boss Law” this State law joins New York City in making reproductive health decisions a protected category. Notably, while these new laws protect employees from discrimination on the basis of reproductive health decisions, they do not specifically require employers to provide particular reproductive health benefits to employees.
Before January 7, 2020 all New York employers are required to update their employee handbooks to include a notice of employees’ rights and remedies under this law. Although many employee handbooks already include “catch-all” provisions within their equal employment, anti-discrimination and/or sexual harassment policies, we recommend that this change be explicitly spelled out in an employee handbook, as New York went through the unusual step of inserting this handbook requirement into the law.
Specifically, under Section 203-e of the New York State Labor Law employers are prohibited 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 against or taking any retaliatory personnel action against an employee with respect to “compensation, terms, conditions, or privileges of employment” because of or on the basis of the employee’s or dependent’s reproductive health decision making; or
- Requiring an employee “to sign a waiver or other document” that denies the employee the “right to make their own reproductive health care decisions.”
Consequences for violating the law could be severe. Employees have a private right of action and can seek remedies including back pay, benefits, and reasonable attorney’s fees and costs, as well as injunctive relief and/or reinstatement against any employer that “commits or proposes to commit” a violation of the law. Moreover, the law permits liquidated damages “equal to one-hundred percent of the award for damages…unless the employer proves a good faith basis to believe that its actions…were in compliance with the law.”
If an employer retaliates against the employee (defined as “discharging, suspending, demoting, or otherwise penalizing an employee for: (a) making or threatening to make, a complaint to an employer, co-worker, or public body, that rights under the 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 a violation of a law, rule or regulation”) an employee may be entitled to a separate award of civil penalties.
Further guidance is expected from the Department of Labor with respect to the requisite notice, but in the meantime employers should be sure to update their handbooks and consider adding this protected category to any existing materials.