New York employers must provide notice to its employees regarding their right to be free from discrimination or retaliation based on the employees’ or their dependents’ reproductive health decision making. New York employers that use employee handbooks are now required to include such a notice in their handbook. This requirement stems from Labor Law § 203-e (the “Act”), which was enacted in November 2019, and follows the U.S. Court of Appeals for the Second Circuit’s decision vacating of a lower court’s permanent injunction of the New York law requiring employers to include a notice in their employee handbooks regarding New York’s reproductive health decision making protections.
The Act requires employers to include in their handbooks a notice of employees’ rights and remedies under the Act and was enacted to “ensure that employees or their dependents are able to make their own reproductive health care decisions without incurring adverse employment consequences.” Under the Act, employers may not “discriminate nor take 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, including, but not limited to, a decision to use or access a particular drug, device or medical service.” The Act also prohibits employers from “accessing an employee’s personal information regarding the employee’s or the employee’s 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.”
The Act was challenged by three religious organizations who argued, among other things, that the notice requirement violated their First Amendment rights. The U.S. District Court for the Northern District of New York issued a permanent injunction in 2022 halting enforcement of the Act’s notice requirement, holding that the notice provision violated the First Amendment rights of the plaintiffs (three religious organizations) by compelling them to publish a message that conflicted with their mission and was not sufficiently narrowly tailored to achieve a compelling state interest.
On appeal, the Second Circuit disagreed with the district court’s reasoning and held that requiring employers that use a handbook to include a notice of employee rights and remedies under the Act did not violate the plaintiffs’ First Amendment rights. In finding the notice requirement lawful, the Second Circuit stated that the notice requirement “is similar to many other state and federal laws requiring workplace disclosures” and that while “the policy judgment that motivated [§ 203-e] may be ‘controversial’ in the same way that the policy judgments underlying Title VII, or minimum wage laws, are controversial . . . the existence and contents of [§ 203-e] – and an employer’s obligation to comply with it – is not itself controversial.” The Second Circuit noted that the notice requirement in no way restricts employers from otherwise communicating their moral, political, or religious views to their employees.
The statute does not establish a clear penalty for an employer’s non-compliance with the notice provision. Nonetheless, New York employers should review and revise their employee handbooks to ensure compliance with this Second Circuit ruling.