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New York State Protects Employee’s Disclosure of Reproductive Health “Decision-Making”

As of November 2019, New York State prohibits employment discrimination based on an employee’s or an employee’s dependent’s “reproductive health decision-making.”  This would include questions regarding whether an employee plans to explore in vitro fertilization, uses birth control or not, etc.  This law also prohibits an employer from firing or in any way harming an employee because of choices involving birth control, or use any other form of reproductive assistance.

The Basics of the Law

Under this new law:

  • Employers in New York are prohibited from accessing an employee’s personal information regarding the employee or the employee’s dependent’s reproductive health decision making. Reproductive health decision making includes the decision to use or access a particular drug, device or medical service without the employee’s informed written consent.
  • Employers are prohibited from retaliating or taking any type of negative employment action against the employee related to their reproductive health decision making.
  • Employers are prohibited from requiring an employee to sign a waiver which denies an employee’s right to make their own reproductive health care decisions such as the use of a drug, device, or medical service.

New York City has a similar law already in effect which we have written about here

Penalties for Non-Compliance

If a New York employer violates this law, the employee may bring a lawsuit where the potential penalties are:

  • Damages such as back pay, lost benefits, and reasonable attorneys’ fees and costs;
  • Injunctive relief;
  • Reinstatement of the employee back to the job they had before the wrongful conduct; and
  • Liquidated damages equal to 100% of the damages award.

What Employers Should Do Now

  • Revise equal employment opportunity statements and policies in handbooks, employment applications, and elsewhere that list the categories protected from discrimination, harassment, and retaliation to include “reproductive health decision making.”
  • Train human resources and supervisors on changes made to the policies and appropriate/inappropriate topics to be discussed during interviews, employee coaching sessions, etc.

Brody and Associates regularly advises management on complying with the latest state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.