NY State Senate Bill S3791

Archive: Last Bill Status - In Senate Committee Insurance Committee

Introduced
In Committee
On Floor Calendar
- Passed Senate
- Passed Assembly
Delivered to Governor
Signed/Vetoed by Governor

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Actions

view actions (8)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 22, 2018	reported and committed to insurance
Mar 19, 2018	notice of committee consideration - requested
Jan 03, 2018	referred to labor
May 16, 2017	print number 3791a
May 16, 2017	amend and recommit to insurance
May 01, 2017	reported and committed to insurance
Mar 13, 2017	notice of committee consideration - requested
Jan 27, 2017	referred to labor

Votes

view votes

May 22, 2018 - Labor committee Vote

S3791A

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

May 1, 2017 - Labor committee Vote

S3791

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

show Labor committee vote details

Labor Committee Vote: May 1, 2017

aye (8)

nay (3)

aye wr (3)

excused (1)

Parker

Bill Amendments

Original

A (Active)

Original

A (Active)

Co-Sponsors

view additional co-sponsors

S3791 - Details

Current Committee:: Senate Insurance
Law Section:: Labor Law
Laws Affected:: Add §203-e, Lab L
Versions Introduced in Other Legislative Sessions:: 2013-2014: S6578
2015-2016: S2709
2019-2020: S660

S3791 - Summary

Relates to the prohibition of discrimination based on an individual's or a dependent's reproductive health decision making.

S3791 - Sponsor Memo

 BILL NUMBER:  S3791

 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.

S3791 - Bill Text download pdf


                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3791

                       2017-2018 Regular Sessions

                            I N  S E N A T E

                            January 27, 2017
                               ___________

Introduced  by  Sens. KRUEGER, AVELLA, BAILEY, CARLUCCI, DILAN, HOYLMAN,
  MONTGOMERY, PARKER, PERALTA, PERKINS, RIVERA, SAVINO,  SERRANO,  SQUA-
  DRON,  STAVISKY -- read twice and ordered printed, and when printed to
  be committed to the Committee on Labor

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:
  § 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:
  (A) DISCRIMINATE NOR TAKE ANY RETALIATORY PERSONNEL ACTION AGAINST  AN
EMPLOYEE  WITH RESPECT TO COMPENSATION, TERMS, CONDITIONS, OR PRIVILEGES
OF EMPLOYMENT BECAUSE OF OR ON THE BASIS OF  THE  EMPLOYEE'S  OR  DEPEN-
DENT'S  REPRODUCTIVE  HEALTH DECISION MAKING, INCLUDING, BUT NOT LIMITED
TO, A DECISION TO USE OR ACCESS A PARTICULAR  DRUG,  DEVICE  OR  MEDICAL
SERVICE; OR
  (B)  REQUIRE  AN  EMPLOYEE  TO  SIGN  A WAIVER OR OTHER DOCUMENT WHICH
PURPORTS TO DENY AN EMPLOYEE THE RIGHT TO MAKE  THEIR  OWN  REPRODUCTIVE
HEALTH  CARE  DECISIONS,  INCLUDING USE OF A PARTICULAR DRUG, DEVICE, OR
MEDICAL SERVICE.
  3. AN EMPLOYER THAT PROVIDES AN EMPLOYEE  HANDBOOK  TO  ITS  EMPLOYEES
MUST  INCLUDE  IN  THE  HANDBOOK  NOTICE OF EMPLOYEE RIGHTS AND REMEDIES
UNDER THIS SECTION.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD01766-01-7

S. 3791                             2

  4. 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.
  5.  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:
  (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  PARAGRAPH  (A) OF THIS SUBDIVISION UNLESS AN
EMPLOYER PROVES A GOOD FAITH  BASIS  TO  BELIEVE  THAT  ITS  ACTIONS  IN
VIOLATION OF THIS SECTION WERE IN COMPLIANCE WITH THE LAW.
  6. 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
OR RETALIATORY PERSONNEL  ACTION  SHALL  MEAN  DISCHARGING,  SUSPENDING,
DEMOTING, 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.
  § 2. This act shall take effect immediately.

Co-Sponsors

view additional co-sponsors

S3791A (ACTIVE) - Details

Current Committee:: Senate Insurance
Law Section:: Labor Law
Laws Affected:: Add §203-e, Lab L
Versions Introduced in Other Legislative Sessions:: 2013-2014: S6578
2015-2016: S2709
2019-2020: S660

S3791A (ACTIVE) - Summary

Relates to the prohibition of discrimination based on an individual's or a dependent's reproductive health decision making.

S3791A (ACTIVE) - Sponsor Memo

 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.

S3791A (ACTIVE) - Bill Text download pdf


                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3791--A

                       2017-2018 Regular Sessions

                            I N  S E N A T E

                            January 27, 2017
                               ___________

Introduced  by  Sens. KRUEGER, AVELLA, BAILEY, CARLUCCI, DILAN, HOYLMAN,
  MONTGOMERY, PARKER, PERALTA, RIVERA, SANDERS, SAVINO,  SERRANO,  SQUA-
  DRON,  STAVISKY -- read twice and ordered printed, and when printed to
  be committed to the Committee on Labor -- reported favorably from said
  committee and committed to the Committee  on  Insurance  --  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:
  §  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:
  (A)  DISCRIMINATE NOR TAKE ANY RETALIATORY PERSONNEL ACTION AGAINST AN
EMPLOYEE WITH RESPECT TO COMPENSATION, TERMS, CONDITIONS, OR  PRIVILEGES
OF  EMPLOYMENT  BECAUSE  OF  OR ON THE BASIS OF THE EMPLOYEE'S OR DEPEN-
DENT'S REPRODUCTIVE HEALTH DECISION MAKING, INCLUDING, BUT  NOT  LIMITED
TO,  A  DECISION  TO  USE OR ACCESS A PARTICULAR DRUG, DEVICE OR MEDICAL
SERVICE; OR
  (B) REQUIRE AN EMPLOYEE TO SIGN  A  WAIVER  OR  OTHER  DOCUMENT  WHICH
PURPORTS  TO  DENY  AN EMPLOYEE THE RIGHT TO MAKE THEIR OWN REPRODUCTIVE
HEALTH CARE DECISIONS, INCLUDING USE OF A PARTICULAR  DRUG,  DEVICE,  OR
MEDICAL SERVICE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD01766-03-7

S. 3791--A                          2

  3.  AN  EMPLOYER  THAT  PROVIDES AN EMPLOYEE HANDBOOK TO ITS EMPLOYEES
MUST INCLUDE IN THE HANDBOOK NOTICE  OF  EMPLOYEE  RIGHTS  AND  REMEDIES
UNDER THIS SECTION.
  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:
  (A)  AWARD  DAMAGES, INCLUDING, BUT NOT LIMITED TO, BACK PAY, BENEFITS
AND REASONABLE ATTORNEYS' FEES AND COSTS INCURRED TO A PREVAILING PLAIN-
TIFF;
  (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  PARAGRAPH  (A) OF THIS SUBDIVISION 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.  NOTHING  IN THIS SECTION SHALL BE CONSTRUED TO LIMIT ANY RIGHTS OF
AN EMPLOYEE PROVIDED THROUGH ANY OTHER PROVISION OF LAW, COMMON  LAW  OR
COLLECTIVE BARGAINING UNIT.
  6. 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
OR RETALIATORY PERSONNEL  ACTION  SHALL  MEAN  DISCHARGING,  SUSPENDING,
DEMOTING, 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.
  § 2. This act shall take effect immediately.

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The New York State Senate

senate Bill S3791

Sponsored By

Archive: Last Bill Status - In Senate Committee Insurance Committee

Your Voice

Actions

Votes

May 22, 2018 - Labor committee Vote

Committee Vote: May 22, 2018

May 1, 2017 - Labor committee Vote

Labor Committee Vote: May 1, 2017

Bill Amendments

Co-Sponsors

S3791 - Details

S3791 - Summary

S3791 - Sponsor Memo

S3791 - Bill Text download pdf

Co-Sponsors

S3791A (ACTIVE) - Details

S3791A (ACTIVE) - Summary

S3791A (ACTIVE) - Sponsor Memo

S3791A (ACTIVE) - Bill Text download pdf

Comments

senate Bill S3791

Share this bill

Sponsored By

Archive: Last Bill Status - In Senate Committee Insurance Committee

Your Voice

Actions

Votes

May 22, 2018 - Labor committee Vote

Committee Vote: May 22, 2018

May 1, 2017 - Labor committee Vote

Labor Committee Vote: May 1, 2017

Bill Amendments

Co-Sponsors

S3791 - Details

S3791 - Summary

S3791 - Sponsor Memo

S3791 - Bill Text download pdf

Co-Sponsors

S3791A (ACTIVE) - Details

S3791A (ACTIVE) - Summary

S3791A (ACTIVE) - Sponsor Memo

S3791A (ACTIVE) - Bill Text download pdf

Comments