SC Pregnancy Accommodations Act: What it means to employees and employers
By Grant Burnette LeFever
In May 2018, South Carolina took what many would describe as an uncharacteristically progressive step in joining 22 other states and the District of Columbia in providing statutory protection for pregnancy and childbirth. Notably, South Carolina is the first Southern state to do so.
The South Carolina Pregnancy Accommodations Act requires employers to provide reasonable accommodations to employees for medical needs arising from pregnancy, childbirth or related medical conditions, including lactation. It also prohibits employers from denying employment based on the need for pregnancy or childbirth accommodations, requiring an employee to take leave if another reasonable accommodation is available or taking adverse action against an employee for requesting or using such an accommodation.
For South Carolina women, the Pregnancy Accommodations Act means the ability to continue working and providing for their families—before, during, and after childbirth. It also maximizes the chances for healthier pregnancies and babies, as fewer women will be forced to choose between their jobs and their own health or the health of their babies.
For South Carolina employers with at least 15 employees, the Pregnancy Accommodations Act means new notice requirements, revisiting accommodations policies and additional training. However, many accommodations (e.g. providing more frequent bathroom or food breaks) are no-cost or low cost to employers, and such practices have been shown to reduce workforce turnover, increase employee productivity and save money on workers’ compensation and related costs.
At a minimum, employers and employees alike should know the following about South Carolina’s new law.
Overview of the South Carolina Pregnancy Accommodations Act
Effective May 17, 2018, the South Carolina Pregnancy Accommodations Act amends the South Carolina Human Affairs Law (SCHAL), S.C. Code Ann. Sections 1-13-10 to -110, to extend discrimination protections and reasonable accommodations to “women affected by pregnancy, childbirth, or related medical conditions.”
The stated intent of the Act is “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.” 2018 S.C. Act No. 244, § 2.
The stated purpose further recognizes that “[c]urrent 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.” Id. This is an especially important recognition considering that 64 percent of women who gave birth in South Carolina in 2017 were employed.
The Pregnancy Accommodations Act amends the South Carolina Human Affairs Law in three important ways.
The South Carolina Human Affairs Law tracks Title VII and other federal discrimination statutes and prohibits workplace discrimination against someone due to race, religion, color, sex, age, national origin or disability.
The Pregnancy Accommodations Act amends the definitions section of the South Carolina Human Affairs Law to expressly define “because of sex” or “based on sex” to include “because of or on the basis of pregnancy, childbirth, or related medical conditions, including, but not limited to, lactation.” S.C. Code Ann. § 1-13-30(l).
The Act also amends the definition of “reasonable accommodation” under Section 1-13-30(T) to provide specific examples of reasonable accommodations an employer may be required to make for employees who are pregnant or have recently given birth. These accommodations include, but are not limited to:
- making existing facilities accessible;
- providing more frequent or longer breaks;
- providing more frequent bathroom breaks; providing a private place, other than a bathroom stall, for expressing milk;
- modifying food or drink policy;
- providing seating or allowing the employee to sit more frequently if the job requires the employee to stand;
- aiding with manual labor and limits on lifting;
- temporarily transferring the employee to a less strenuous or hazardous vacant position, if qualified;
- providing job restructuring or light duty, if available;
- acquiring or modifying equipment or devices necessary for performing essential job functions; and
- modifying work schedules.
S.C. Code Ann. § 1-13-30(T). An employer is not required to do the following, unless the employer would do so for other employees needing a reasonable accommodation:
- hire new employees;
- 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 a light duty position for the employee, unless a light duty position would be provided 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.
Employers should provide reasonable accommodations to covered women upon request from the individual, unless providing an accommodation would impose an undue hardship on the employer. SCHAL defines “undue hardship” as an action requiring significant difficulty or expense when considered in light of several factors, including the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s business. S.C. Code Ann. § 1-13-30(U). Undue hardship to an employer is determined on a case-by-case basis. Importantly, if an accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship.
Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. Necessary information may include documentation of the pregnancy or birth and need for accommodation. In some cases, the pregnancy and need for accommodation are obvious and no additional information is necessary.
Once the employer has gathered the necessary information, the employer should discuss with the employee accommodations available to her for achieving the medically necessary result or relief. Once accommodation options have been explored, the employer must choose what accommodation to implement, considering the employee’s preference if there is more than one option. This is what the South Carolina Human Affairs Commission refers to as the “interactive process.”
Unlawful employment practices
Another key provision of the Pregnancy Accommodations Act is the amendment to actions that are unlawful employment practices, found in Section 1-13-80. It is now an “unlawful employment practice” for an employer to do any of the following:
- fail or refuse to make reasonable accommodations for medical needs arising from pregnancy, childbirth, or related medical conditions of an applicant for employment or an employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer;
- deny employment opportunities to a job applicant or employee, if the denial is based on the need of the employer to make reasonable accommodations to the known limitations for medical needs arising from pregnancy, childbirth, or related medical conditions of an applicant for employment or an employee;
- 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 limitation related to pregnancy, or if the accommodation is unnecessary for the applicant or employee to perform the essential duties of her job;
- require an employee to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided to the known limitations for medical needs arising from pregnancy, childbirth, or related medical conditions; or
- take adverse action against an employee in the terms, conditions, or privileges of employment for requesting or using a reasonable accommodation to the known limitations for medical needs arising from pregnancy, childbirth, or related medical conditions.
S.C. Code Ann. § 1-13-80(A)(4)(a)-(e).
Employees who feel that they have been discriminated against in violation of the Pregnancy Accommodations Act should file a Charge of Discrimination with the South Carolina Human Affairs Commission (SCHAC). Though an employee can file a Charge of Discrimination without legal assistance, there are tight deadlines for doing so, and the facts and allegations in the Charge limit the scope of future legal action against the employer. The experienced employment attorneys at Burnette Shutt & McDaniel can assess the strength of your claims, advise you on the time limits, draft your administrative charge and help you negotiate with your employer. The firm also can help you pursue a “right to sue” letter, which gives you permission to file a lawsuit in court once the SCHAC concludes its investigation or if the investigation takes too long.
Who’s covered under the South Carolina Pregnancy Accommodations Act
The Pregnancy Accommodations Act applies to all employers covered under the SCHAL. In other words, the Act applies to any employer (including staffing agencies) that has 15 or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.
Significantly, the Pregnancy Accommodations Act establishes new notice and posting requirements for employers, which became effective on September 14, 2018.
To comply with the Act, covered employers must 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 all new employees at the commencement of employment and should have been given to all existing employees as of September 14, 2018.
The Act also requires that the notice be conspicuously posted at an employer’s place of business in an area accessible to employees. The South Carolina Human Affairs Commission has issued a new poster in compliance with the Act, available here (or in Spanish here). While the conspicuous posting should satisfy the notice requirement for existing employees, without more specific guidance from SCHAC, it is advisable for employers to provide separate written notice for existing employees.
Employers who have not yet posted the required notice should do so immediately, presumably in the same place where the employer currently posts its equal employment opportunity posters and other required postings. Employers who have not yet done so also should ensure the required notice is incorporated in their new hire paperwork.
Other actions employers should consider to ensure full compliance with the Act include the following: update employee handbooks and policies addressing accommodations and leave; consider the types of accommodations that could be implemented in the specific workplace; communicate changes in policy to Human Resources, supervisors, and managers; train supervisors and managers on how to recognize and handle accommodation requests; and train appropriate personnel, such as Human Resources, on how to manage accommodation requests.
Burnette Shutt & McDaniel can help employers understand the new law and review their workplace policies to ensure they comply. Our services range from in-house training sessions to preparing employee handbooks and policies.
Whether you are an employee or employer attempting to navigate the South Carolina Pregnancy Accommodations Act, contact the experienced employment attorneys at Burnette Shutt & McDaniel to see how they can help.
Grant Burnette LeFever is a University of South Carolina School of Law graduate who is awaiting the results of the South Carolina Bar exam. You can reach her at 803.904.7920 or firstname.lastname@example.org.