The United States District Court Northern District of New York (NY) has deemed the state’s law on reproductive health decisions under New York Labor Law (NYLL), Section 203-E to be partially unconstitutional. The ruling applies specifically to the portion of the law that required employers to include a notice of rights and remedies in their employee handbooks.
History of the Law
On November 8, 2019, an amendment to NYLL, Section 203-E–took effect, prohibiting all employers within New York State from discriminating or retaliating against employees or their dependents based on their reproductive health decision-making. The law states that an employer may not access an employee’s personal information regarding their or the their 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 affirmative written consent. In addition, as of January 7, 2020, the law required all NY employers to notify employees of their rights and remedies under the law by including the notice in the organization’s employee handbook.
A suit was filed by Christopher T. Slattery, and the Evergreen Association, Inc. (a non-profit that operates pregnancy centers) against the state, citing that this requirement compelled them to deliver a message contrary to their religious beliefs on reproductive health decisions, among other assertions. The court partially agreed with the plaintiffs, noting that the state failed to demonstrate that the notice requirement was the least restrict method to maintain employee privacy and notify employees of their right and remedies. Specifically, the state did not demonstrate why offering the information “in a variety of other ways, including by advertising the provision generally, producing posters to be placed in workers’ view at the job site, and in general statements of workers’ rights provided by the Department [of Labor] itself” would not achieve the same goals, as “[d]oing so would not require the Plaintiffs to produce such speech themselves, or to include that speech in handbooks describing workers’ rights and responsibilities produced under the employers’ imprimatur.”
Due to this decision, employers are no longer required to include this notice in their employee handbooks but should be advised that the portions of the law which states that reproductive health decisions are a protected class and that employers may not discriminate or retaliate against an employee based on their or their dependent’s reproductive health decisions remains in place. In addition, employers are still prohibited from accessing an employee’s personal information regarding the their (or their dependent’s) reproductive health decisions, without the employee’s prior informed affirmative written consent, nor can employers require an employee to sign a waiver or other document that purports to deny employees the right to make their own reproductive healthcare decisions.
Next Steps for Employers
The state can appeal this decision, but it is currently unclear whether they will. Because this ruling does not invalidate the anti-discrimination and anti-retaliation provisions of the law, employers should still ensure that their EEO and non-harassment/non-discrimination policies reflect this protected class. It should also be noted that employers are not obligated to remove the policy from their employee handbook and best practice would be to consult with legal counsel to evaluate their options.