Don’t finalize your 2025 handbooks just yet!

On January 2, 2025, the United States Court of Appeals for the Second Circuit vacated a permanent injunction, which had blocked a requirement that New York employers with employee handbooks include a notice against discrimination based on reproductive health care choices. As a result, handbooks covering New York employees must again include such notices.

The notice requirement originates from a series of legislation intended to protect reproductive health rights enacted on November 8, 2019. As we previously reported, one of the bills (A584/S660) added Section 203-e to the New York labor law, which prohibits employers from discriminating against employees based on an employee’s or their dependents’ sexual and reproductive health choices, including their choice to use or access a particular drug, device, or medical service. The law also prohibits employers from accessing such information without prior consent, and directed New York employers with employee handbooks to include a notice of employee rights and remedies. Although the law took effect immediately upon passage, a second bill (S4413) delayed the effective date of the notice requirement until January 2020.

A little more than two years later, the U.S. District Court for the Northern District of New York blocked the notice requirement. In CompassCare et al. v. Cuomo, several faith-based employers challenged Section 203-e in its entirety as violative of the First Amendment to the United States Constitution. Although the District Court dismissed most of the claims, on March 29, 2022, the court permanently enjoined enforcement of the notice requirement stating that it “would compel [the plaintiffs] to promote a message about conduct contrary to their religious perspectives” as they relate to reproductive health choices, such as birth control and abortion. The court found that, while New York has a compelling interest in protecting employee privacy, the State had not demonstrated that the notice requirement was the least restrictive means of achieving that interest. For example, employers could inform employees of their rights and the remedies under the law in other ways, such as placing posters at the job site, or advertising the statutory provision generally.

On appeal nearly three years later, the Second Circuit vacated the permanent injunction, thus reinstating the handbook notice requirement. The Second Circuit panel found that the requirement is similar to other state and federal laws requiring workplace disclosures and noted that while the policy judgments motivating Section 203-e may be “controversial”, so are those underlying Title VII or minimum wage laws, but that does not make an employer’s obligation to comply controversial. The Second Circuit also stated that the notice requirement does not prevent employers from otherwise communicating to employees, in their handbooks or elsewhere, their political or religious views, including their disagreement with Section 203-e.

In light of the Second Circuit’s decision, New York employers should review and revise their employee handbook to include a notice of employees’ reproductive health rights and remedies as provided by Section 203-e. The law does not provide specific language to include – and New York has not published a model notice or any further guidance on the law to date – thus, employers should consult employment counsel to ensure that their handbook notice satisfies the law’s requirements.