The 2nd U.S. Circuit Court of Appeals earlier this month vacated a lower court’s permanent injunction that had prevented the employer notice requirement in New York’s reproductive health bias law from taking effect. The appellate court’s decision in Compass Care v. Hochul means New York employers that have employee handbooks must now include notice of employee’s rights and remedies under the reproductive health bias law in those handbooks.
The reproductive health bias law, which took effect in 2020, prohibits employers from accessing an employee’s personal information relating to the employee’s or the employee’s dependent’s reproductive health decision-making and retaliating against them for their decisions. “Reproductive decision making” includes “a decision to use or access a particular drug, device, or medical service.” Additionally, employers may not require employees to sign anything that would prevent or restrict employees from making their own reproductive health care decisions.
Employees alleging a violation of the law may institute a civil action, with potential penalties including:
- Damages, including back pay, benefits, and reasonable attorneys’ fees and costs;
- Injunctive relief;
- Reinstatement; and/or
- Liquidated damages.
Finally, the law requires employers with employee handbooks to inform employees of their rights to make reproductive health decisions and be free from discrimination or retaliation by the employer for those decisions.
The 2nd Circuit’s decision arose from a claim by three religious organizations that the law violated their First Amendment freedoms of expressive association, speech and religion, and that the notice provision compelled speech in violation of the First Amendment. The lower court dismissed most of the organizations’ claims but issued a permanent injunction against the notice provision.
Subsequently, in a separate challenge, the 2nd Circuit held that an employer may have an associational rights claim if the law “forces the employer to employ individuals who act or have acted against the very mission of its organization” (emphasis in original). The appellate court then vacated the permanent injunction against the law’s notice provision but remanded the case for individual determinations as to whether any of the three plaintiff organizations have a plausible associational rights claim.
New York employers that have employee handbooks or provide other types of employee access to policies should immediately review and update these materials to include the law’s required notice regarding employee rights and remedies. The law does not provide specific language that must be included, and New York has not published model language to date, so employers should consult with employment counsel to ensure their handbook notices are in compliance.
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