After unanimous passage in both houses of the General Assembly, Governor Henry McMaster signed the South Carolina Pregnancy Accommodations Act (HB 3865) into law last year.[1] The law took effect May 17, 2018, and requires all employers with employees in South Carolina to give notice of the terms of the statute no later than September 14, 2018.

The Act is intended “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.” Interestingly, the General Assembly noted that current workplace laws were inadequate to protect pregnant women; the Act’s stated purpose is to strengthen the law so as “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 requires employers to 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.” The Act also requires that the notice be conspicuously posted in the workplace in an area accessible to employees. While the statute expressly requires employers to give immediate notice of the statute to new employees upon hiring (providing a later compliance date for existing employees), the General Counsel of the state enforcement agency, the South Carolina Human Affairs Commission, has confirmed that SHAC did not require compliance with the notice requirement for new hires or existing employees until September 14, 2018.

The Act requires employers of 15 or more to make facilities readily accessible for and provide reasonable accommodations to employees with “medical needs arising from pregnancy, childbirth, or related medical conditions,” including lactation.

The Americans with Disabilities Act has generally not been interpreted to cover pregnancy unless there are related medical issues. The new South Carolina statute broadens workplace protections for pregnant working women in South Carolina by:

  • Expanding the word “sex” to include “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.”
  • Requiring employers to provide reasonable accommodation for pregnancy and related medical conditions, including lactation.
  • Making it 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.

Absent undue hardship, the Act also includes specific examples of reasonable accommodations that employers may be required to make for covered employees. Some of these are: providing a private place, other than a bathroom stall, for the purpose of expressing milk; providing more frequent or longer break periods; allowing more frequent bathroom breaks; modifying the company’s food or drink policy; providing seating or permitting the employee to sit more frequently if the job requires the employee to stand; providing assistance with manual labor and limits on lifting; providing job restructuring or light-duty work, if available; and temporarily transferring the employee, if qualified, to a less strenuous or hazardous vacant position.

The Act does not require employers to provide certain accommodations, unless they also do so for employees who need reasonable accommodations for reasons other than pregnancy, childbirth, and related conditions. Thus employers are not required to “hire new employees that the employer would not have otherwise hired;” “discharge an employee or transfer another employee with more seniority, or promote another employee who is not qualified to perform the new job” to open a position for a pregnant employee; “create a new position, including a light duty position for the employee, unless a light duty position would be provided for another equivalent employee;” or “compensating an employee for more frequent or longer break periods, unless the employee uses a break period which would otherwise be compensated.”

It is an open question whether an employer must provide a reasonable leave of absence for recovery from childbirth when an employee has exhausted other types of leave such as FMLA.

The South Carolina Human Affairs Commission has posted downloadable posters in English and Spanish and a FAQs document at

https://www.schac.sc.gov/sites/default/files/Documents/PAA%20FAQs%209.6.18%20(6).pdf

Any employer with employees in South Carolina should revise its existing equal employment opportunity statements and policies to include “on the basis of pregnancy, childbirth, or related medical conditions, including, but not limited to, lactation.” Employers should also review and update policies addressing accommodations, leave and light-duty assignments, and train supervisors and managers on the Act so they can identify situations where it applies and alert appropriate company officials.