After a three-year pause, New York is again requiring employers to provide notice of employees’ rights under the state’s Reproductive Health Bias Law in employee handbooks.
On Jan. 2, 2025, the U.S. Court of Appeals for the Second Circuit vacated a permanent injunction issued by a lower court in 2022 which had blocked the notice requirement. Following the Second Circuit’s decision, New York employers must revise their handbooks to include the required notice provision and comply with the law.
Background
The New York Reproductive Health Bias Law, initially enacted in November of 2019, prohibits employment discrimination based on an employee’s or a dependent’s reproductive health decision making, including the individuals use of a particular drug, device, or medical service. The law also restricts employer’s ability to access information about an employee’s decision making on reproductive health without first obtaining the employee’s informed written consent.
The statute further requires that employee handbooks include a notice of employee rights and remedies under the Reproductive Health Bias Law.
Permanent Injunction
Several groups – CompassCare, the National Institute of Family and Life Advocates and First Bible Baptist Church – challenged the constitutionality of the law in federal court for the Northern District of New York. These plaintiffs argued the law was impermissibly vague and violated their First Amendment rights to free association, speech and exercise of religion. In addition, the plaintiffs argued the law’s notice requirement compelled speech in contravention of the First Amendment.
In June of 2020, the U.S. District Court for the Northern District of New York dismissed the majority of plaintiffs’ claims, but allowed the claim regarding the notice provision to proceed. In 2022, the District Court permanently enjoined enforcement of the notice requirement, holding that the law required plaintiffs “to promote a message about conduct contrary to their religious perspective,” and was not narrowly tailored to serve the state’s interests.
Reinstatement of the Notice Requirement
On appeal, the Second Circuit, in CompassCare v. Hochul, vacated the permanent injunction and reinstated the notice requirement of the law, reasoning that, while the underlying policy judgment may be controversial, the act simply “required disclosure of the existence and basic nature of an otherwise-valid statute,” in the same manner as “many other state and federal laws requiring workplace disclosures.”
At the same time, the court revived the plaintiffs’ claim the law violated their right to “expressive association by prohibiting them from terminating or refusing to hire a person who has made a reproductive health decision, such as having used contraception or had an abortion, that conflicts with Plaintiffs’ beliefs.” The Second Circuit held that the lower court should re-examine the issue in light of recent caselaw, but to succeed on their claim, plaintiffs need to prove the law “threatens the very mission of [their] organization[s].”
Takeaways for Employers
In light of the Second Circuit’s decision, New York employers will need to revise their handbooks to include a notice of employees’ rights and remedies under the Health and Reproductive Bias Law. To date, New York State has not published a model notice or guidance for employers. As a result, employers are encouraged to contact employment counsel to ensure compliance with the law.
