Relates to the prohibition of discrimination based on an individual's or a dependent's reproductive health decision making.
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 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 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. It also prohibits discrimination based on an employer's personal beliefs about such services.
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 are able to make their own reproductive health care decisions without incurring adverse employment consequences because of their employers' personal beliefs about those decisions.
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 because of the employer's personal beliefs.
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 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.
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This Act shall take effect immediately
STATE OF NEW YORK ________________________________________________________________________ 6578--B IN SENATE February 7, 2014 ___________Introduced by Sens. KRUEGER, AVELLA, DILAN, HASSELL-THOMPSON, HOYLMAN, MONTGOMERY, PARKER, PERALTA, SERRANO, STAVISKY -- read twice and ordered printed, and when printed to be committed to the Committee on Labor -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- 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: Section 1. The labor law is amended by adding a new section 203-e to read as follows: S 203-E. PROHIBITION OF DISCRIMINATION BASED ON AN EMPLOYEE'S OR A DEPENDENT'S REPRODUCTIVE HEALTH DECISION MAKING. 1. AN EMPLOYER SHALL BE PROHIBITED FROM ACCESSING AN EMPLOYEE'S PERSONAL INFORMATION REGARDING THE EMPLOYEE'S OR THE EMPLOYEE'S DEPENDENT'S REPRODUCTIVE HEALTH DECI- SION 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. 2. AN EMPLOYER SHALL NOT DISCRIMINATE AGAINST AN EMPLOYEE WITH RESPECT TO COMPENSATION, TERMS, CONDITIONS, OR PRIVILEGES OF EMPLOYMENT BECAUSE OF OR ON THE BASIS OF THE EMPLOYEE'S OR DEPENDENT'S REPRODUCTIVE HEALTH DECISION MAKING, INCLUDING, BUT NOT LIMITED TO, A DECISION TO USE OR ACCESS A PARTICULAR DRUG, DEVICE OR MEDICAL SERVICE, OR BECAUSE OF OR ON THE BASIS OF AN EMPLOYER'S PERSONAL BELIEFS ABOUT SUCH SERVICES. 3. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT ANY RIGHTS OF AN EMPLOYEE PROVIDED THROUGH ANY OTHER PROVISION OF LAW OR COLLECTIVE BARGAINING UNIT. 4. AN EMPLOYEE MAY BRING A CIVIL ACTION IN ANY COURT OF COMPETENT JURISDICTION AGAINST AN EMPLOYER ALLEGED TO HAVE VIOLATED THE PROVISIONS OF THIS SECTION. IN ANY CIVIL ACTION ALLEGING A VIOLATION OF THIS SECTION, THE COURT MAY:EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD13689-06-4 S. 6578--B 2
(A) AWARD DAMAGES, INCLUDING BACK PAY, BENEFITS AND REASONABLE ATTOR- NEYS' FEES AND COSTS INCURRED TO A PREVAILING PLAINTIFF; (B) AFFORD INJUNCTIVE RELIEF AGAINST ANY EMPLOYER THAT COMMITS OR PROPOSES TO COMMIT A VIOLATION OF THE PROVISIONS OF THIS SECTION; (C) ORDER REINSTATEMENT; AND/OR (D) AWARD LIQUIDATED DAMAGES EQUAL TO ONE HUNDRED PERCENT OF THE AWARD FOR DAMAGES PURSUANT TO SUBDIVISION (A) OF THIS SUBSECTION UNLESS AN EMPLOYER PROVES A GOOD FAITH BASIS TO BELIEVE THAT ITS ACTIONS IN VIOLATION OF THIS SECTION WERE IN COMPLIANCE WITH THE LAW. 5. ANY ACT OF RETALIATION FOR AN EMPLOYEE EXERCISING ANY RIGHTS GRANT- ED UNDER THIS SECTION SHALL SUBJECT AN EMPLOYER TO SEPARATE CIVIL PENAL- TIES UNDER THIS SECTION. FOR THE PURPOSES OF THIS SECTION, RETALIATION SHALL MEAN DISCHARGING OR OTHERWISE PENALIZING AN EMPLOYEE FOR: (A) MAKING OR THREATENING TO MAKE, A COMPLAINT TO AN EMPLOYER, CO-WORKER, OR TO A PUBLIC BODY, THAT RIGHTS GUARANTEED UNDER THIS SECTION HAVE BEEN VIOLATED; (B) CAUSING TO BE INSTITUTED ANY PROCEEDING UNDER OR RELATED TO THIS SECTION; OR (C) PROVIDING INFORMATION TO, OR TESTIFYING BEFORE, ANY PUBLIC BODY CONDUCTING AN INVESTIGATION, HEARING, OR INQUIRY INTO ANY SUCH VIOLATION OF A LAW, RULE, OR REGULATION BY SUCH EMPLOYER. S 2. This act shall take effect immediately.