NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1142A
SPONSOR: Jaffee (MS)
TITLE OF BILL:
An act to amend the labor law, in relation to discrimination based on an
employee's or a dependent's reproductive health decision making
PURPOSE OR GENERAL IDEA OF BILL:
To prohibit employers from discriminating against employees based on the
employees' or dependent's reproductive health decisions, and to provide
remedies for such violations.
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 employ-
ee'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, affir-
mative 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 repro-
ductive health decisions.
The bill provides additional protections for the employee as any employ-
er who provides an employee handbook to its employees must include, in
the handbook, a notice of employee rights and remedies under this
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 plain-
tiff 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.
This bill ensures that employees or their dependents are able to make
their own reproductive health care decisions without incurring adverse
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 operat-
ing 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 employ-
ees based on reproductive health decisions, regardless of how the
employer became aware of those decisions. The Health Insurance Portabil-
ity and Accountability Act (HIPAA) does offer a high level of confiden-
tiality with regard to medical care and decisions. However, an employer
does receive health insurance utilization summaries, which are distrib-
uted 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 composi-
tion 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 society'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.
This Act shall take effect immediately.
STATE OF NEW YORK
2015-2016 Regular Sessions
January 8, 2015
Introduced by M. of A. JAFFEE, DINOWITZ, COOK, GALEF, GOTTFRIED, CAHILL,
FAHY, CLARK, SCHIMEL, TITUS, MOSLEY, ZEBROWSKI, PICHARDO, SIMON,
STECK, BRINDISI, MAYER, SIMOTAS, ARROYO, JOYNER, AUBRY, LINARES,
SEAWRIGHT, ABINANTI, SKOUFIS -- Multi-Sponsored by -- M. of A. BARRON,
BRENNAN, BROOK-KRASNY, BUCHWALD, CROUCH, DAVILA, DUPREY, GLICK, HOOP-
ER, LUPARDO, MARKEY, PERRY, RIVERA, WRIGHT -- read once and referred
to the Committee on Labor -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the labor law, in relation to discrimination based on an
employee's or a dependent's reproductive health decision making
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The labor law is amended by adding a new section 203-e to
2 read as follows:
3 § 203-e. Prohibition of discrimination based on an employee's or a
4 dependent's reproductive health decision making. 1. An employer shall be
5 prohibited from accessing an employee's personal information regarding
6 the employee's or the employee's dependent's reproductive health deci-
7 sion making, including but not limited to, the decision to use or access
8 a particular drug, device or medical service without the employee's
9 prior informed affirmative written consent.
10 2. An employer shall not:
11 (a) discriminate nor take any retaliatory personnel action against an
12 employee with respect to compensation, terms, conditions, or privileges
13 of employment because of or on the basis of the employee's or depen-
14 dent's reproductive health decision making, including, but not limited
15 to, a decision to use or access a particular drug, device or medical
16 service; or
17 (b) require an employee to sign a waiver or other document which
18 purports to deny an employee the right to make their own reproductive
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
A. 1142--A 2
1 health care decisions, including use of a particular drug, device, or
2 medical service.
3 3. An employer that provides an employee handbook to its employees
4 must include in the handbook notice of employee rights and remedies
5 under this section.
6 4. Nothing in this section shall be construed to limit any rights of
7 an employee provided through any other provision of law or collective
8 bargaining unit.
9 5. An employee may bring a civil action in any court of competent
10 jurisdiction against an employer alleged to have violated the provisions
11 of this section. In any civil action alleging a violation of this
12 section, the court may:
13 (a) award damages, including back pay, benefits and reasonable attor-
14 neys' fees and costs incurred to a prevailing plaintiff;
15 (b) afford injunctive relief against any employer that commits or
16 proposes to commit a violation of the provisions of this section;
17 (c) order reinstatement; and/or
18 (d) award liquidated damages equal to one hundred percent of the award
19 for damages pursuant to paragraph (a) of this subdivision unless an
20 employer proves a good faith basis to believe that its actions in
21 violation of this section were in compliance with the law.
22 6. Any act of retaliation for an employee exercising any rights grant-
23 ed under this section shall subject an employer to separate civil penal-
24 ties under this section. For the purposes of this section, retaliation
25 or retaliatory personnel action shall mean discharging, suspending,
26 demoting, or otherwise penalizing an employee for:
27 (a) making or threatening to make, a complaint to an employer,
28 co-worker, or to a public body, that rights guaranteed under this
29 section have been violated;
30 (b) causing to be instituted any proceeding under or related to this
31 section; or
32 (c) providing information to, or testifying before, any public body
33 conducting an investigation, hearing, or inquiry into any such violation
34 of a law, rule, or regulation by such employer.
35 § 2. This act shall take effect immediately.