Executive Summary: Effective May 17, 2018, a new South Carolina law, the Pregnancy Accommodations Act, expanded existing state law protections for pregnant employees. Most notably, the new law requires employers to provide reasonable accommodations for “medical needs arising from pregnancy, childbirth, or related medical conditions,” including lactation and the need to express breast milk.
Recent Trend of Pregnancy Accommodation Laws
The South Carolina Pregnancy Accommodations Act follows a modern trend of state legislatures ensuring pregnant women have the right to reasonable accommodations. Twenty-three states and the District of Colombia have now passed laws explicitly granting pregnant employees the right to accommodations in the workplace, with eighteen of these laws enacted in the last five years. For a discussion of the recently enacted Massachusetts law, please see our Legal Alert, Massachusetts Pregnant Workers Fairness Act Takes Effect April 1, 2018.
However, this trend has been slow to reach the American south. South Carolina, Louisiana, and Texas are the only southern states that have enacted legislation that explicitly ensures pregnant employees have the right to accommodations. Further, all three of the southern states’ laws are minimally intrusive compared to other states’ laws. Texas’s law only applies to municipal and county employees, and Louisiana’s law only applies to employers with at least 25 employees. South Carolina’s law has the broadest scope in the south and applies to employers with at least 15 employees.
South Carolina Pregnancy Accommodations Act Requirements
New Posting Requirement
Employers must immediately begin providing written notice to all new employees, upon hire, that they have the right to be free from discrimination for medical needs arising from pregnancy, childbirth, or related medical conditions. Employers must also provide the same written notice to all existing employees. And, employers should immediately post the same notice in a conspicuous, employee-accessible location in the workplace.
The notice requirement appears to require only notice that employees are free from discrimination for medical needs due to pregnancy, childbirth, or medical conditions, which by the plain text of the law does not require notice of the reasonable accommodation requirement. However, the South Carolina Human Affairs Commission (SHAC) could further clarify the contents of the notice requirement, and SHAC is expected to issue an acceptable notice but has not yet done so.
Reasonable Accommodation Requirement
The full extent of South Carolina law will be decided in the coming years by SHAC, which has the power to issue regulations interpreting the Act. However, South Carolina employers should be immediately aware of the current requirements set out by the plain language of the Act.
First, employers must provide reasonable accommodations for pregnant employees as long as the accommodations do not cause an undue hardship on the employer. This requirement largely tracks existing federal law. Under the prior version of the state law, however, this requirement was limited to individuals with disabilities. Further, unless SHAC says otherwise, it will be as difficult to show undue hardship to accommodate a pregnancy-related medical condition as it currently is for disability-related accommodations. Importantly for employers, the law provides explicit examples of reasonable accommodations contemplated by lawmakers, including:
- Providing longer breaks to the employee; however, employers are not required to compensate an employee for the longer breaks unless the employer normally compensates for break periods;
- Providing more frequent bathroom breaks;
- Providing a private place, other than a bathroom stall, for employees expressing milk (though the employer is not required to create a permanent structure for an employee to express milk);
- Modifying food or drink policies;
- Providing seating or allowing the employee to sit more frequently;
- Providing assistance with manual labor and limitations on lifting;
- Temporarily transferring an employee to a less strenuous position if needed, but the employer is not required to create a light duty position, hire new employees, or transfer a pregnant employee to a position outside the scope of the employee's qualifications;
- Acquiring or modifying equipment or devices necessary for the essential job functions;
- Modifying work schedules.
The Act also provides a short list of accommodations that are not required unless the employer also provides them to other employees. Those things not required include:
- Hiring new employees the employer would not have otherwise hired;
- Discharging an employee, transferring another employee with more seniority, or promoting another employee who is not qualified to perform the new job;
- Creating a new position, including light duty, for the employee, unless a light duty position would be provided for another employee, for example one with a workers’ compensation injury.
- Employers should review their handbooks and related policies so that the required changes are implemented as soon as possible, as the act was effective at the time of enactment on May 17, 2018.
- Employers should immediately begin providing the required written notice of rights to new hires at the beginning of their employment.
- Employers must display the required written notice of rights in a conspicuous place accessible to existing employees.
- Employers should carefully consider any request for accommodation made by a pregnant (or recently pregnant) employee. If a requested accommodation is unworkable, an employer should work with the employee to determine if a feasible alternative is available. Employers should only use the undue hardship exception in truly unusual situations, and employers should thoroughly document the asserted hardship, ideally in consultation with legal counsel.