United States: South Carolina Passes New Workplace Pregnancy Law

On May 17, 2018, Governor Henry McMaster signed into law the South Carolina Pregnancy Accommodations Act. The new law amends the South Carolina Human Affairs Law, which already prohibited discrimination by employers against employees because of race, religion, color, sex, age, national origin, or disability. The Act is effective immediately and requires employers to reasonably accommodate.

Discrimination

The Act prohibits employers from discriminating against employees because of or on the basis of pregnancy, childbirth, or related medical conditions. Women affected by pregnancy, childbirth, or related medical conditions are required to be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.

These requirements are consistent with the longstanding provisions of the federal Pregnancy Discrimination Act and the South Carolina Human Affairs Law. However, the new law, for the first time, requires employers to reasonably accommodate pregnant employees.

Reasonable Accommodations

The Americans with Disabilities Act ("ADA"), a federal law, already requires employers to reasonably accommodate disabled employees; however, pregnancy or childbirth does not always qualify as a disability. The Act is much broader because it only requires a pregnant employee or employee who gave birth to show she has a medical need. A medical need may not rise to the level of a disability. For instance, breastfeeding would likely not be a disability, but it is a medical need related to child birth. Likewise, being hungrier or having to use the bathroom more frequently would likely not be a disability, but it could be a medical need related to pregnancy.

South Carolina employers may not deny employment opportunities to applicants or employees affected by pregnancy, childbirth, or related medical condition because the employer might have to make a reasonable accommodation; require an applicant or employee affected by pregnancy, childbirth, or related medical condition to accept an accommodation; or require an employee to take leave under any law or policy if another reasonable accommodation can be provided.

The Act lists specific reasonable accommodations related to pregnancy or childbirth that employers may have to provide, including:

  • Make existing facilities used by employees readily accessible to and usable by individuals with medical needs arising from pregnancy, childbirth, or related medical conditions.
  • Provide more frequent or longer break periods.
  • Provide more frequent bathroom breaks.
  • Provide a private place, other than a bathroom stall for the purpose of expressing milk.
  • Modify food or drink policies.
  • Provide seating or allowing the employee to sit more frequently if the job requires the employee to stand.
  • Provide assistance with manual labor and limits on lifting.
  • Temporarily transferring the employee to a less strenuous or hazardous vacant position.
  • Provide job restructuring or light duty.
  • Modify work schedules.

While examples only show what could be considered a reasonable accommodation, they are a good indicator of the types of accommodations the law expects employers to provide. Of course, what is reasonable will depend on the circumstance and each request should be analyzed individually. Similar to the ADA, an employer does not have to reasonably accommodate a pregnant employee, if doing so would constitute an undue hardship—which typically is a high standard for an employer to establish.

Additionally, the Act sets forth the following accommodations that employers must provide only if they do so for "equivalent" employees:

  • Hiring new employees that the employer would not have otherwise hired;
  • Discharge an employee, transfer another employee with more seniority, or promote another employee who is not qualified to perform the new job;
  • Create a new position, including light duty; for the employee, unless it would be done for another equivalent employee; or
  • Compensate an employee for more frequent or longer break periods, unless the employee uses a break period which would otherwise be compensated.

Accordingly, employers should keep track of what types of accommodations they are already providing to employees that could be considered equivalent. An equivalent employee could be construed to be an injured employee or an employee with a disability.

Notice

Finally, the Act requires employers to provide written notice to employees of their right to be free from discrimination for medical needs arising from pregnancy, childbirth, or related medical conditions. This notice must be provided to new employees at the start of their employment and to existing employees by September 14, 2018 (120 days from the effective date of the Act). In addition to providing all employees with a notice, the notice must also be conspicuously posted in an area accessible to employees, like a break room.

Actions to Take

If you are a South Carolina employer with 15 or more employees, you should:

  • Review your current employment policies and procedures to ensure compliance with the Act.
  • Determine what accommodations you are currently making to disabled employees or employees with medical conditions.
  • Understand the differences between the Act and current federal laws.
  • Provide written notice to all current employees by September 14, 2018.
  • Post a notice of the rights under the Act in an employee common area.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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