What was old is once again new – effective immediately, New York employers once again are required to include in their employee handbooks a notice regarding prohibited discrimination and retaliation based on an employee’s reproductive health care choices. The reinstated notice requirement comes in light of the Second Circuit’s recent decision in CompassCare et al. v. Hochul. Read on to learn how we got here and what you should do now.
New York’s Reproductive Health Bias Law
The original notice requirement stems from a 2019 law enacted to protect the reproductive health decisions of employees. New York’s Reproductive Health Bias Law prohibits employers from discriminating or retaliating against employees based on their – or their dependent’s – sexual and reproductive health choices. Among other things, the law prohibits New York employers from accessing personal information regarding an employee’s or their dependent’s reproductive health decisions without prior written consent and also requires employers to include a notice in employee handbooks to inform employees of their rights and remedies under the law.
New York District Court Blocks Notice Requirement
In CompassCare et al. v. Hochul, a group of faith-based employers challenged the notice requirement arguing that it unconstitutionally infringed on their First Amendment freedoms of expressive association, speech, and religion. In 2022, the U.S. District Court for the Northern District of New York entered a permanent injunction blocking enforcement of the notice provision, finding the requirement would “compel [the plaintiffs] to promote a message about conduct contrary to their religious perspectives” (i.e., reproductive choices, such as birth control and abortion), and that the State failed to demonstrate it was the “least restrictive means to achieve a compelling objective.”
Second Circuit Reinstates Notice Requirement
In January 2025, the Second Circuit reversed the injunction, finding that the notice requirement “did not interfere with Plaintiffs’ greater message and mission” as they were free to share their moral, political, and religious views – including their disagreement with the law – in their handbooks or elsewhere. The court also noted that the notice provision is similar to many other state and federal laws requiring workplace disclosures of employees’ rights through notices and postings, and that while the policy judgment underlying the law may be “controversial,” the contents of the law and an employer’s obligation to inform employees of their rights and remedies under a valid statute is not, itself, controversial. The Second Circuit remanded the case for reconsideration under a 2023 decision, which held that an employer could have a claim if they were forced to employ individuals who acted against the organization’s very mission.
Employer Takeaways
Employers should immediately comply with the reinstated notice requirement by including in their employee handbooks a notice informing employees of their rights and remedies under the law, including the right to be free from discrimination or retaliation based on the employee’s or their dependent’s reproductive health decisions.
If you have any questions related to the Second Circuit’s decision or need assistance complying with obligations under New York’s Reproductive Health Bias Law, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.
