BILL NUMBER: S660

SPONSOR: METZGER
 
TITLE OF BILL:  An act to amend the labor law, in relation to discrim-
ination 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.  s.k1 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, includ-
ing, 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 employ-
er 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 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.

 
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 deci-
sions.

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 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:

3/13/18 Passed Assembly
6/12/17 Passed Assembly
6/7/16 Passed Assembly
6/16/15 Passed Assembly
6/18/14 Passed the Assembly.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
Immediate.