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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

January 29, 2020

Employers Should Update Handbooks to Reflect New NYS Ban on Discrimination in Reproductive Health Decisions

January is always a good time for employers to review and update their employee handbooks, as new laws frequently take effect at the beginning of the year. For example, in New York State, the recently enacted Labor Law § 203-e not only protects employees against discrimination on the basis of their reproductive health decisions, but it also requires employers to provide notice in their handbooks and manuals of their employees’ rights under the new law.

Under Labor Law § 203-e, employers are prohibited from engaging in the following acts:

  • Accessing personal information about the reproductive health decision-making of an employee or a dependent, unless the employee provides prior informed written consent
  • Discriminating or taking retaliatory personnel action against an employee on the basis of the reproductive health decision-making of the employee or a dependent
  • Requiring an employee to file a waiver or other document that purports to deny an employee the right to make their own reproductive health decisions

An employee aggrieved under the law can bring a civil action against their employer, and a court may award monetary damages, reasonable attorneys’ fees to a prevailing plaintiff, and liquidated damages equal to 100 percent of the damages award unless the employer proves a good-faith basis to establish its conduct was in compliance with the law.

What makes Labor Law § 203-e somewhat unique is its requirement that “[a]n employer that provides an employee handbook to its employees must include in the handbook notice of employee rights and remedies” under this statutory provision. Although the NYS Department of Labor has not yet issued guidance regarding what is required in the handbook notice, the notice requirement became effective as of January 8, 2020. Consequently, NYS employers should immediately amend their employee handbooks to include reproductive health decisions as a protected category, to affirmatively state that discrimination and retaliation based on reproductive health decisions are prohibited, and to confirm that employee medical records will remain confidential.

Barclay Damon’s labor and employment attorneys are available to assist employers with satisfying this new statutory requirement as well as reviewing employee handbooks.

If you have any questions regarding the content of this alert, please contact Brian Culnan, partner, at bculnan@barclaydamon.com or another member of the firm’s Labor & Employment Practice Area.

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