Senate Bill S3791A

                                 BILL NUMBER:  S3791A

 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 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 reproductive health decisions.

The bill provides additional protections for the employee as any
employer 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 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 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 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
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.

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
This Act shall take effect immediately.