Second Circuit Reinstates NY Reproductive Health Bias Law’s Notice Requirement, by Keith J. Gutstein, Esq. and Shiddhartha Uddin Esq., 4-23-2025

Following a recent U.S. Court of Appeals Second Circuit court decision, New York employers must once again provide notice of employees’ rights under the state’s Reproductive Health Bias Law within their handbooks.

In the decision, the Court lifted a permanent injunction that had been issued almost three years prior by a lower court that had barred enforcement of the notice requirement under the New York Reproductive Health Bias Law (New York Labor Law Section 203-e).

The Act prohibits discrimination based on an employee’s or a dependent’s reproductive health decision making.

According to the statute, an employer is prohibited from “accessing an employee’s personal information regarding the employee’s or the employee’s 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.”

Additionally, under the Act, employers cannot discriminate or take any retaliatory action. Among other provisions, the statute also included a requirement that employee handbooks include “notice of employee rights and remedies” under [Section 203-e].

Background

In March 2022, the U.S District Court for the Northern District of New York in CompassCare v. Hochul blocked NYS from enforcing that notice provision following a suit by several religious organizations that challenged the Health Bias law’s constitutionality. At the time, the Court maintained that that the notice provision was subject to strict scrutiny because it would compel the Plaintiffs “to promote a message about conduct contrary to their religious perspective,” and the provision was not “sufficiently narrowly tailored” to achieve a compelling government interest.

Three years later, the Second Circuit has reinstated the notice provision, concluding that it is “similar to many other state and federal laws requiring workplace disclosures-in employee handbooks or through other means…” and that it requires “disclosure of the existence and basic nature of an otherwise-valid statute.” It clarified that, even though the law was “compelled speech,” it was not “inextricably intertwined with otherwise fully protected speech” so as to be subject to strict scrutiny. Instead, the Court found that “such notices are permissible – even if compelled – if they withstand a rational basis review” which the Court ultimately held that the law did.

However, the Second Circuit did reopen Plaintiffs’ “expressive-association claims” remanding the case back to the lower court for further proceedings. In doing so, the Second Circuit referenced its 2023 decision in Slattery v. Hochul, which held that an employer may have an associational rights claim if the Act (Section 203-e of the New York Labor Law) forces an employer “to employ individuals who act or have acted against the very mission of its organization.” 

In its decision, the Second Circuit noted that “the district court did not have the benefit of the Slattery opinion-which is now binding precedent-when it issued the orders challenged in this matter.”

Given this turn of events, employers should immediately update their handbooks to comply with the notice provision.  

Authors: Keith J. Gutstein, Chair of KD’s Labor and Employment Law Practice Group and Co-Managing Partner of the Long Island Office and Associate Shiddhartha Uddin