New York Employers Must (Again) Provide Reproductive Health Notice of Rights in Employee Handbooks Following Second Circuit Ruling

New York employers are – once again – required to provide employees with notice regarding New York’s reproductive health decision making protections. The U.S. Court of Appeals for the Second Circuit vacated a lower court’s permanent injunction of a New York law that requires employers to include a notice in their employee handbooks regarding the State’s prohibition of discrimination based on reproductive health choices. 

The handbook notice requirement stems from New York’s Reproductive Health Bias Law (Labor Law § 203-e) (the “Act”) which was enacted in November 2019 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.” Relevant here, the Act requires that employers include in their handbooks a notice of employees’ rights and remedies under the Act.

Numerous religious organizations challenged the Act, including by arguing 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. On appeal, the Second Circuit disagreed with the district court’s reasoning and lifted the notice-related injunction. 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 further noted that the notice requirement in no way restricts employers from otherwise communicating their moral, political, or religious views (or even their disagreement with the provision) to their employees. The Second Circuit remanded the issue back to the district court for further analysis consistent with the appellate decision – thus, the litigation may not be over just yet.  

Although the statute does not establish a clear penalty for an employer’s non-compliance with the notice provision (as opposed to the clearly stated employer penalties for engaging in discrimination/retaliation under the Act), New York employers are encouraged to revisit their employee handbooks to ensure compliance with the recent ruling. The Mintz Employment team is available to assist. 

Subscribe To Viewpoints