Posted On Jun 19, 2018
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.
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.
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:
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:
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.
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: