BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE
South Carolina has joined a legion of other states by passing a law that provides workplace protections and accommodations for women affected by pregnancy, childbirth, or related medical conditions, including lactation. Each state puts its own stamp of originality on the provisions of such laws, but many common themes carry through – for example, these laws do not require the employee to be “disabled” by pregnancy to be entitled to an accommodation.
The South Carolina Pregnancy Accommodations Act (H 3865) was signed by the Governor on May 17, 2018, and became effective immediately. Here are some of the key provisions of the law.
Reasonable accommodations. The law requires employers to provide a reasonable accommodation for medical needs of an employee or applicant arising from pregnancy, childbirth or related medical conditions, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer’s business. “Reasonable accommodation” is defined to include:
- Providing more frequent or longer break periods (but the employer is not required to compensate
the employee for breaks that exceed normal paid breaks in duration or frequency);
- Providing more frequent bathroom breaks;
- Providing a private place, other than a bathroom stall, for the purpose of 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;
- Providing assistance 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.
Notice to employees. Employers must provide written notice to employees of “the right to be free from discrimination for medical needs arising from pregnancy, childbirth or related medical conditions” pursuant to the law. This notice must be provided to new employees upon hire and to existing employees within 120 days after the effective date of the act. Such notice must also be posted in the employer’s business at a place accessible to employees. The state has not yet provided a prototype notice for employers’ use, which is problematic since new hires are entitled to the notice starting on the act’s effective date (which means now).
Miscellaneous provisions. The law also extends existing nondiscrimination protections for workers to include employees affected by pregnancy, childbirth and related conditions. In addition, employers must ensure that existing facilities used by employees are readily accessible to employees with medical needs arising from pregnancy, childbirth or related medical conditions (as well as to others with disabilities).
Pings for Employers
- Develop, post, and start providing the required notice to employees right away. The law was effective upon
the Governor’s signature on May 17, so any new hires are already entitled to receive the notice and existing
employees 120 days thereafter.
- Oddly, the notice requirement, as quoted above, only addresses the right to be free from discrimination,
not the right to reasonable accommodations for pregnancy and related conditions. Unless and until the
state provides a prototype notice form, employers should play it safe and include the right to accommodations
in the notice as well.
- Unlike some other recent pregnancy protection laws, the South Carolina act does not address what
documentation an employer can require to verify an employee’s accommodation request.
Employers should consider providing the simpler accommodations such as a seat, modification of food
and beverage rules, or more frequent breaks – without the need for medical documentation. Other types
of accommodations may justify a request for medical support, if the need for the accommodation is not
obvious and/or is outside of the normal types of pregnancy-related conditions or limitations employees
Matrix can help! Matrix will assist employers in administering the accommodations provisions of this new law if the client has engaged Matrix for ADA services.