Second Circuit Reinstates New York Reproductive Health Notice Rights Requirement in Employee Handbooks
In a decision dated January 2, 2025, CompassCare and others. In a decision issued on January 2, 2025 in CompassCare et al., a Second Circuit panel overturned a permanent injunction that was issued in April 20, 22 that prohibited New York State employers from including a notice regarding the prohibition of discrimination based upon reproductive health care choices in their employee handbooks. As a result, employers statewide will once again be required to include such notice in their handbooks.
Background
The notice requirement, which first took effect in November 2019, was part of a broader amendment to the New York Labor Law adding a new Section 203-e prohibiting employers from accessing information on employees’ or their dependents’ reproductive health without prior consent, as well as generally prohibiting discrimination and retaliation against an employee “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.” To that end, employers that maintain an employee handbook were required to include in the handbook a notice of employee rights and remedies under the law.
District Court Issues Permanent Injunction
As we previously reported, following the enactment of the law, several faith-based employers challenged Section 203-e in its entirety, claiming First Amendment violations. The majority of claims were dismissed but in a decision issued on March 29, 2022, the Northern District of New York Court found that the notice requirement forced plaintiffs to convey a message that was contrary to their religious beliefs, including regarding reproductive choices such as birth control and abortion. . . represent Plaintiffs’ statements to their employees about the rules that govern conduct in the workplace, the values of the organizations, and the religious perspective that guides the organizations’ operations.” The district court permanently enjoined the notice requirement statewide.
The Second Circuit’s Decision
Following a lengthy appeals process, the Second Circuit held that the notice requirement “is similar to many other state and federal laws requiring workplace disclosures” and that while “the policy judgment that motivated
may be ‘controversial’ in the same way that the policy judgments underlying Title VII, or minimum wage laws, are controversial . . . The panel vacated the injunction. The Second Circuit upheld the dismissal of many First Amendment claims but revived plaintiffs’ claims relating to expressive association. This is an implicit First Amendment right “to associate with other people in pursuit of a variety of political and social, economic, religious, educational, and cultural goals.” Citing Slattery V. Hochul,61 F.4th 278, the Second Circuit affirmed the dismissal of the majority of First Amendment claims. In 2023, the Second Circuit held an employer could have an associational right claim if Section 203 e “forces [Section 203-e] employees to act or have acted in opposition to the very mission of their organization” (emphasis added). The panel then held that since the district court did not have the benefit Slattery’s opinion – now binding precedent – when it issued orders in this case, it was appropriate to remand the matter to the district court for it to “determine
