Relates to the prohibition of discrimination based on an individual's or a dependent's reproductive health decision making

Summary of specific provisions

Section 1 amends the labor law by adding a new section 203-e to prohibit discrimination based on an employee's or an employee's dependent's reproductive health decision making. This section prohibits an employer from accessing an employee's personal information regarding the employee's or the 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.

This section also prohibits discrimination or any retaliatory action against an employee on the basis of the employee's or a dependent's reproductive health decision making, including, but not limited to, a decision to use or access a particular drug, device or medical service. In addition, an employer may not require an employee to sign a waiver or document which would deny an employee the right to make their own reproductive health decisions.

The bill provides additional protections for the employee as any employer who provides an employee handbook to its employees must include, in the handbook, a notice of employee rights and remedies under this section.

This section also makes clear that the bill does not conflict with any other employee protections provided through any provision of law or collective bargaining unit.

This section also provides that in a civil action alleging a violation of this law, the court may award the plaintiff damages that include back pay, benefits and reasonable attorney's fees and costs. In addition, the court may order reinstatement or afford injunctive relief against an employer in violation of this law. The court may also award the plaintiff liquidated damages equal to one hundred percent of the award for damages, unless an employer proves a good faith basis to believe that its actions were in compliance with the law. This section also provides that retaliation against an employee exercising rights granted under this law shall subject an employer to separate civil penalties.

Section 2 establishes the effective date.

Justification

This bill ensures that employees or their dependents are able to make their own reproductive health care decisions without incurring adverse employment consequences.

The federal Affordable Care Act (ACA) recently required that health insurance plans cover FDA-approved birth control methods without out-of-pocket costs. Some for-profit employers have attempted to prevent employees from accessing this benefit because it conflicts with their personal beliefs. As a result, over 100 federal lawsuits have been filed by employers to deny employees this benefit, including employers operating in New York State. Employers should not be able to discriminate or interfere in employees' personal medical decisions.

While federal and state laws have been enacted which demonstrate a commitment to protect individuals against employment discrimination, loopholes exist which leave employees vulnerable to discrimination based on their reproductive health decisions. The Legislature must ensure that the legal loopholes are corrected to ensure that employees' decisions about pregnancy, contraception, and reproductive health are also protected under state law.

This bill is not about insurance coverage and is not intended to require coverage for any health care service, drug or device.

This bill would prevent an employer from discriminating against employees based on reproductive health decisions, regardless of how the employer became aware of those decisions. The Health Insurance Portability and Accountability Act (HIPAA) does offer a high level of confidentiality with regard to medical care and decisions. However, an employer does receive health insurance utilization summaries, which are distributed to each employer on a regular basis. In these reports, personally identifiable information is excluded to comply with privacy protections of HIPAA. However, in some cases, an individual's identity may still be deduced by an employer based on the nature of the service and composition of the insured class reported in the summaries. While a violation of HIPAA would be an actionable violation of privacy, there are other avenues in which an employer may become aware of their employees personal information. It is not unlikely that this information could be unintentionally disclosed by a co-worker, discovered through social media or electronic surveillance currently available, or even disclosed through a personal admission by the employee. Reproductive health care decisions, while usually kept private, should not become s ociety's new version of "Don't Ask, Don't Tell". Employees must be protected from discrimination based on the reproductive health care decisions they make. This legislation will provide that protection.

Prior legislative history

This is new legislation.

Fiscal implications

None.

Effective date

This Act shall take effect immediately.