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The Business Council opposes this draft legislation which would adopt a new “Reproductive Rights Disclosure Act." This bill is a gross overreaction to the U.S. Supreme Court's decision in Burwell v. Hobby Lobby, a decision that narrowly limits the scope of the contraceptive mandate under the federal Affordable Care Act.
This bill would apply to all employers in New York that provide group health coverage to employees, and would require them to give current employees, as well as the New York State Department of Labor, the Department of Financial Services, and the State Attorney General's Office, 90 days' notice before changing contraceptive coverage. If adopted, this would be the only specific coverage change subject to the Labor Law's Section 217 pre-notification requirement.
The draft bill also requires all persons seeking employment with the employer to receive notification as to whether the employer's health policy includes contraceptive coverage and, if so, what specific contraceptive drugs and devices they provide. This notice is to be included in every written job application, and to be posted on an employers' job-related web site.
Violations of each of these notice mandates would be subject to a $5,000 civil penalty, and in both cases, where the employer is a corporation or “trade association", the entity's president, secretary and treasurer can be held personally liable for the civil penalty.
The narrow Hobby Lobby decision allows a limited category of companies, i.e., closely held corporations espousing sincerely held religious beliefs, to drop contraceptive coverage from their employee insurance plans.
In sharp contrast, this draft bill would impose one notice standard for all employers, regardless of their nature or structure.
Importantly, this proposed bill ignores a key provision of New York State Insurance Law, §4303, which requires group plans to provide coverage for the full range of contraceptive drugs and devices, if the employers includes prescription drugs in their plans. Since the Hobby Lobby decision applies only to the federal regulation, this state mandate on the scope of contraceptive coverage would continue to apply to all New York employers.
As such, the only real effect of this bill is to impose an additional, recurring administrative burden on employers, and expose employers to civil penalties, while providing no meaningful benefit or contraceptive coverage protections to employees.
Moreover, under the draft bill, employers would be responsible for disclosing all contraceptive drugs or devices not included in their coverage. This creates a herculean and superfluous task for every New York employer to know with certainty, every single contraceptive drug or devise and generic version thereof approved by the FDA. Even unintentional violations, after good faith efforts to comply, would be subject to the $5000 civil penalty.
Legislation like this simply adds to the already burdensome business environment in New York State.
For these reasons, The Business Council opposes this legislation and urges that it not be enacted by the New York State Legislature.