On May 17, 2018, South Carolina Governor Henry McMaster signed the South Carolina Pregnancy Accommodations Act into law. The Act, which amends the South Carolina Human Affairs Law, is effective immediately and closely tracks many protections already provided by the federal Pregnancy Discrimination Act. However, the Act has some new and expanded requirements for South Carolina employers.
Specifically, the Act requires employers with 15 or more employees 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 Act also requires that employers provide employees with written notice of its protections and post related information in conspicuous areas.
Workplace Accommodations for Pregnant Employees
Generally speaking, the Americans with Disabilities Act is not interpreted to cover pregnancies that do not give rise to medical issues, but the Act does cover pregnancies for South Carolina employers. The Act also includes specific examples of reasonable accommodations that employers may be required to make for covered employees, absent a demonstrable undue hardship. Some of the reasonable accommodation examples that may be new to employers include: providing a private place, other than a bathroom stall, for the purpose of expressing milk, (but employers are not required to construct a permanent, dedicated space for expressing milk); providing more frequent or longer break periods; allowing more frequent bathroom breaks; modifying the company’s food or drink policy; modifying work schedules; 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 Pregnancy Accommodations Act does not require employers to provide certain accommodations, unless they also do so for employees that need reasonable accommodations for reasons other than pregnancy, childbirth, and related conditions. Accordingly, employers are not required to take the following action, among others: “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.”
Employment Practices Deemed Unlawful by the Act
The Act also renders a number of employment decisions unlawful. Of special note, the Act makes it unlawful for an employer “to require an applicant for employment or an employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation that the applicant or employee chooses not to accept, if the applicant or employee does not have a known pregnancy limitation related to pregnancy, or if the accommodation is unnecessary for the applicant or employee to perform the essential duties of her job.” It also prohibits requiring an employee to take leave if another reasonable accommodation can be provided for the known pregnancy-related limitations.
The Act requires employers to provide written notice of the right to be free from discrimination for medical needs arising from pregnancy, childbirth, or related medical conditions. This notice must be given to new employees at the commencement of employment and to existing employees within 120 days of the effective date of the Act, that is, on or before September 14, 2018. Employers must also conspicuously post a notice at an employer’s place of business in an area accessible to employees, presumably in the same place where the employer currently posts its equal employment opportunity posters.
Next Steps for Employers
Employers in South Carolina are responsible for complying with the Act immediately. To comply, employers will want to review and, if necessary, update policies addressing accommodations, leave, and light-duty assignments. Employers can take immediate steps to provide the required notice to new hires, followed by notice to current employees and to post the same in an area accessible by employees by September 14, 2018. Employers should also consider training human resources personnel and front-line supervisors and managers on the Act’s requirements and how to spot or handle pregnancy-related accommodation requests when they arise.