6.8.18

South Carolina is not known for being a hotbed of employment law progressivism. But the state has passed, and the governor has signed, the South Carolina Pregnancy Accommodations Act, which creates additional protections for women affected by pregnancy, childbirth, or related conditions including lactation.

The law, which took effect on May 17, amends the existing state Human Affairs Law in a number of ways. The purpose of the law, as stated by the legislature is

to combat pregnancy discrimination, promote public health, and ensure full and equal participation for women in the labor force by requiring employers to provide reasonable accommodations to employees for medical needs arising from pregnancy, childbirth, or related medical conditions. Current workplace laws are inadequate to protect pregnant women from being forced out or fired when they need a simple, reasonable accommodation in order to stay on the job. Many pregnant women are single mothers or the primary breadwinners for their families; if they lose their jobs then the whole family will suffer. This is not an outcome that families can afford in today’s difficult economy.

The existing statute already prohibited discrimination “because of sex,” and the new law provides that this term now includes “because of or on the basis of pregnancy, childbirth, or related medical conditions, including, but not limited to, lactation.” The law further provides that “women affected by pregnancy, childbirth, or related medical conditions must be treated the same for all employment-related purposes, including receipt of benefits under fringe benefits programs, as other persons not so affected but similar in their ability or inability to work.”

The statute adds examples of possible reasonable accommodations for pregnant women or women with related medical conditions. These include the following:

  • Providing more frequent or longer break periods
  • Providing more frequent bathroom breaks
  • Providing a private place (other than a bathroom stall) for the purpose of expressing milk (though the statute notes that an employer is not required to construct a permanent, dedicated space for expressing milk)
  • Modifying existing food or drink policies
  • Providing seating or allowing the employee to sit more frequently if the job requires standing
  • Providing assistance with manual labor and limits on lifting
  • Temporarily transferring the employee to a less strenuous or hazardous vacant position
  • Providing job restructuring or light duty
  • Acquiring or modifying equipment or devices
  • Modifying work schedules

The analysis regarding whether a requested accommodation is reasonable has not changed, and the statute specifically states that employers are not required to

  • Hire new employees
  • Discharge an employee
  • Transfer another employee with more seniority
  • Promote an employee who is not qualified for the job
  • Create a new position
  • Compensate an employee for more frequent breaks or longer break periods (unless the employee uses a break period that would otherwise be compensated)

These exceptions do not apply, however, if the employer would take such action for other employees or classes of employees needing a reasonable accommodation.

Because most employers have instituted more flexible accommodation practices for pregnant workers and women returning to work post-childbirth since the U.S. Supreme Court’s 2015 decision in Young v. United Parcel Service and the enactment of the federal Nursing Mothers Act, these changes to South Carolina law should present few challenges. However, South Carolina employers should be aware of and take into account this new statute when analyzing specific accommodation requests for pregnancy, childbirth, or related medical conditions.

Notice and Posting Requirement

More challenging for South Carolina employers are the notice and posting requirements of the new law. Employers covered by the Human Affairs Law (or those with 15 or more employees) must provide written notice of these new rights to all new hires and existing employees within 120 days after the law became effective, or by September 14, 2018.

In addition, a notice informing employees of these rights “must be conspicuously posted at an employer’s place of business in an area accessible to employees.” Presumably, the South Carolina Human Affairs Commission will promulgate a standard poster. Until that time, we advise employers to provide notice of and post the language of S.C. Code Section 1-30-80(A)(4)(a)-(e) until otherwise directed by the state agency. For assistance in preparing the notice or poster for your South Carolina workforce, please contact one of Constangy’s South Carolina lawyers.

For a printer-friendly copy, click here.

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