New York Governor Andrew Cuomo has signed into law a bill which, effective immediately, prohibits employers from accessing information on employees’ or dependents’ reproductive health without prior consent.

Specifically, the new law prohibits an employer 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.”  Employers are also prohibited from requiring an employee to sign a waiver or other document which purports to deny an employee the right to make their own reproductive health care decisions, including use of a particular drug, device or medical service. The bill also generally prohibits discrimination and retaliatory 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.”

Employees may bring a civil action against an employer for violation of the law and recover back pay, benefits, reasonable attorneys’ fees and costs.  Other available remedies include injunctive relief, reinstatement and liquidated damages equal to 100% of the award for damages, unless the employer proves a good faith basis to believe that its actions in violation of the law were in compliance with the law.

Moreover, an employer that engages in retaliation is subject to separate civil penalties.  For purposes of this provision, retaliation is defined as discharging, suspending, demoting or otherwise penalizing an employee for:

  • Making or threatening to make, a complaint to an employer, co-worker, or to a public body, that rights guaranteed under the law have been violated;
  • Initiating any proceeding under or related to the law; or
  • Providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry into any such violation of the law.

Notably, employers that maintain an employee handbook must include in the handbook a notice of employee rights and remedies under this law.  Employers in New York should therefore review and revise their existing handbooks to ensure compliance with these new requirements.

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Photo of Arielle E. Kobetz Arielle E. Kobetz

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations…

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations and discipline, leave and accommodation requests, and general employee relations matters. She also counsels clients on developing, implementing and enforcing personnel policies and procedures and reviewing and revising employee handbooks under federal, state and local law.

Prior to joining Proskauer, Arielle served as a law clerk at the New York City Human Resources Administration, Employment Law Unit, where she worked on a variety of employment discrimination and internal employee disciplinary issues.

Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.