On Thursday, May 17, 2018, South Carolina Governor Henry McMaster signed one of the most significant new pieces of state legislation impacting employers in recent years. The South Carolina Pregnancy Accommodations Act (HB 3865) will, among other things, require employers to notify employees of their right to be free from discrimination on the basis of pregnancy, childbirth or related medical conditions. Critically, this new notice requirement goes into effect immediately as to all new employees, and must be satisfied no later than September 14, 2018, for all existing employees.
The Legislature left no question as to the impetus for the Act:
It is the intent of the General Assembly by this act 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 Act amends the South Carolina Human Affairs Law (S.C. Code Ann. §§ 1-13-10, et seq.) in three key respects, each aimed to broaden workplace protections for pregnant women working in South Carolina:
- Amending Section 1‑13‑30(l) to provide that the terms “because of sex” or “on the basis of sex” expressly include “because of or on the basis of pregnancy, childbirth, or related medical conditions, including, but not limited to, lactation,” and providing 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 benefit programs.”
- Amending Section 1‑13‑30(T) to provide that reasonable accommodations must be provided for pregnancy and related medical conditions, including, without limitation, lactation. The amended section also expressly provides that employers may be required to provide accommodations of the same type and in the manner as it would for other employees or classes of employees requiring reasonable accommodation for non-pregnancy-related conditions.
- Amending Section 1‑13‑80(A) (unlawful employment practices) to provide that it is an unlawful employment practice for an employer to (1) fail or refuse to make reasonable accommodations for medical needs arising from pregnancy, childbirth or related medical conditions for applicants or employees; (2) deny employment or opportunities to an employee or applicant if the denial is based on the employee's or applicant's need for a reasonable accommodation; (3) require a pregnant employee or applicant to accept an accommodation not of her choosing, if the applicant or employee does not have a known limitation related to pregnancy or the accommodation is unnecessary for her to perform essential job functions; (4) require the employee to take leave under any leave law or policy if another reasonable accommodation can be provided; or (5) take adverse action against an applicant or employee for requesting or using a reasonable accommodation for a medical need arising from or related to pregnancy, childbirth or related medical condition.
The above amendments largely track existing federal anti-discrimination laws. Tacked on to the amendment to Section 1-13-80(A), however, is the aforementioned requirement that employers provide written notice to all employees of the “right to be free from discrimination for medical needs arising from pregnancy, childbirth, or related medical conditions.” Employers must now provide this notice to all new employees at the commencement of employment, and to existing employees via conspicuous posting within 120 days of the Act’s passage. Left open to debate is whether failure to provide such notice is, in and of itself, an unlawful employment practice under South Carolina law.
To date, neither the legislature nor the Human Affairs Commission (SHAC) has issued any guidance regarding the Act, nor has SHAC provided a suggested poster deemed compliant with the Act. It is unknown how aggressively SHAC will enforce the notice provision, particularly given its immediate effect (sans guidance) upon all new hires.
Until additional state guidance is issued, it is recommended that South Carolina employers (and employers with workers based in the state), revise their existing EEO statement and policy to expressly include “on the basis of pregnancy, childbirth, or related medical conditions, including, but not limited to, lactation” within the statement itself. Posting the revised EEO statement in the employer’s established posting areas should satisfy the required notice to existing employees, but employers should continue to look for more specific guidance from SHAC in the weeks and months ahead to ensure full compliance.
Finally, human resources and management should consider drilling down on the company’s existing policies with respect to accommodations afforded pregnant employees and new mothers to ensure compliance with all applicable employment laws, including South Carolina’s newly expanded Human Affairs Law.