As We Predicted, Challenges to NY Reproductive Health Decision-Making Law Have Begun

Stephen E. Tisman

In a December 17, 2019, Blank Rome Workplace post, we described the law enacted in New York expanding “protected status” to cover employee decision-making regarding reproductive rights matters. (See blankromeworkplace.com/2019/12/17/new-york-expands-discrimination-protection-to-reproductive-health-decision-making/). We concluded with the prediction that:

The law will undoubtedly be challenged by an employer claiming that providing such coverage violates the employer’s religious beliefs (think Masterpiece Cakeshop v. Colorado Civil Rights Commission). The ultimate fate of this statute will be resolved under federal First Amendment law.

That challenge has begun. On January 31, 2020, a lawsuit was filed in federal district court seeking a declaration that the statute is unconstitutional and void, and for an injunction to bar enforcing it against the plaintiffs. Christopher T. Slattery, et al. v. Andrew M. Cuomo, et al., U.S.D.C., N.D.N.Y., Case No. 5:00-at-99999.

Stay tuned for developments.

New York Expands Discrimination Protection to Reproductive Health Decision-Making

Stephen E. Tisman

On November 9, Governor Cuomo signed into law an amendment to the New York Labor Law making it illegal to discriminate against employees based upon the reproductive health decisions of employees or their dependents. The law went into effect immediately upon signing.

Specifically, the new law (N.Y. Labor Law § 203-e):

      • Prohibits an employer from accessing an employee’s personal information regarding reproductive health decision-making without the “employee’s prior informed affirmative written consent.”
      • Prohibits an employer from taking “retaliatory personnel action” against an employee with respect to compensation and terms of employment, because of the employee’s (or dependent’s) decision-making, including decisions regarding use of a drug, device, or medical service.
      • Prohibits requiring an employee to waive the right to make particular reproductive healthcare decisions.
      • Requires employee handbooks to include notice of employee rights and remedies under the new law.
      • Prohibits retaliation against an employee for protesting the violation of rights under the new law, filing an action under or related to the new law, or providing information to a public body.

The new law creates a legal right of action that an employee can pursue in any court of competent jurisdiction for damages, injunctive relief, reinstatement, attorneys’ fees, and liquidated damages equal to the damages awarded, with liquidated damages subject to a defense if the employer proves “a good faith basis to believe that its actions… were in compliance with the law.”

Immediate Takeaway

All New York employers must immediately revise employee handbooks to give notice of the law and available enforcement remedies.

Prediction

The Legislative Supporting Memorandum makes explicit the legislature’s intention to protect employees against employer efforts to deny them the benefit of the provision in the federal Affordable Care Act which requires that health insurance plans cover FDA-approved birth control methods, without out-of-pocket costs. The law will undoubtedly be challenged by an employer claiming that providing such coverage violates the employer’s religious beliefs (think Masterpiece Cakeshop v. Colorado Civil Rights Commission). The ultimate fate of this statute will be resolved under federal First Amendment law.

Workplace Safety Incentive Programs and Post-Incident Drug Testing—Still Okay under OSHA but Don’t Discourage Accident Reporting

Mark Blondman

Many employers have implemented workplace safety incentive programs in an effort to reduce time lost to injuries or illness. The programs generally reward workers for reporting near-misses or hazards and/or reward employees with a prize or bonus at the end of an injury-free period. The programs also may evaluate managers based on their work unit’s lack of injuries. Similarly, employers have implemented drug testing protocols with the same goals.

In May 2016, concerned that employers were not using incentive programs and drug testing policies to encourage safe practices but, instead, to punish employees who reported workplace safety issues, the Occupational Safety and Health Administration (“OSHA”) published a final rule prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. The final rule also suggested that it might constitute retaliation for an employer to limit post-incident and post-accident drug testing to the employee who reported an injury as a result of a workplace incident/accident and not to test all of the employees involved in the incident. Continue reading “Workplace Safety Incentive Programs and Post-Incident Drug Testing—Still Okay under OSHA but Don’t Discourage Accident Reporting”

Warming Up to OSHA’s New Cold Stress Guide

Anna Svensson

Unless you spent the last month on a Caribbean island, you know that a majority of the country was in a deep freeze in late December and early January. Numerous record lows were set and some states, such as the Dakotas and Minnesota, experienced wind chills significantly below zero.

Although temperatures have returned to average in most parts of the country, winter will be with us for a few more months; and the recent freeze is likely to be repeated. The extreme temperatures serve as an important reminder that employers need to take appropriate measures to protect workers from cold stress before it causes harm. While the Occupational Safety and Health Administration (“OSHA”) does not have a specific standard that covers working in cold environments, under the Occupational Safety and Health Act of 1970, employers have a duty to protect workers from recognized hazards, including cold stress hazards. Continue reading “Warming Up to OSHA’s New Cold Stress Guide”

Employees after the Disaster . . . !

Scott F. Cooper

There is an old saying that natural disasters bring out the worst in nature and the best in people. As Hurricane Harvey has shown us, massive devastation is often followed by extraordinary human achievements.

As conditions return to normal in Texas and Louisiana, there are some legal and practical things employers should keep in mind to avoid making an already bad situation worse. These six tips apply just about any time Mother Nature unleashes her fury, including snow, ice, and fire. Continue reading “Employees after the Disaster . . . !”