One of our employees just shared news of her new grandson, and our office team was elated! Everyone loves new babies, right? As employers, it is helpful to keep the same sense of congratulatory excitement as we consider how we treat expecting mothers in our workplace.
Recently, the South Carolina General Assembly passed the SC Pregnancy Accommodations Act last month as communicated in the legislation’s intent statement.
It is the intent of the General Assembly by this act 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. Current 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. This is not an outcome that families can afford in today’s difficult economy.
Signed into law by Governor McMaster last month, the SC Human Affairs Law, which prohibits discrimination based on sex, was amended to include the language, “… because of or on the basis of pregnancy, childbirth, or related medical conditions, including, but not limited to, lactation.” The new SC Pregnancy Accommodations Act not only reinforces the protections under the federal Pregnancy Discrimination Act, it has offered guidance regarding pregnancy and lactation accommodations along with new posting and notice requirements for SC employers.
Employers have learned that it makes good business sense to create a work environment where expectant and nursing mothers feel valued and respected.
As a reminder, the Equal Employment Opportunity Commission (EEOC) has already issued guidance on this topic under the PDA:
The Pregnancy Discrimination Act (PDA) is an amendment to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.
If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee; for example, by providing light duty, modified tasks, alternative assignments, disability leave, or leave without pay.
Additionally, impairments resulting from pregnancy (for example, gestational diabetes) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation for a disability related to pregnancy, absent undue hardship (significant difficulty or expense).
So what does all this mean for South Carolina employers?
There are no significant changes regarding how we treat pregnant employees. If you were already engaging in the interactive process to offer reasonable accommodations to pregnant workers and lactating mothers, stay the course. As we have learned from several high-profile cases and “the Court of Public Opinion,” many employers have learned that it makes good business sense to create a work environment where expectant and nursing mothers feel valued and respected.
If you are unsure about accommodations, the new SC Pregnancy Discrimination Act does state clearer expectations to define unlawful employment practices:
- Failing or refusing to make reasonable accommodations for these employees and/or applicants
- Denying employment or opportunities to an employee or applicant if the denial is based on the employee's or applicant's need for a reasonable accommodation
- Requiring a pregnant employee or applicant to accept an accommodation not of her choosing, if the applicant or employee does not have a known limitation related to pregnancy or the accommodation is unnecessary for her to perform essential job functions
- Requiring the employee to take leave under any leave law or policy if another reasonable accommodation can be provided
- Taking adverse action against an applicant or employee for requesting or using a reasonable accommodation
With the attention around these issues, employers should fully explore solutions for accommodation requests and consult with HR professionals and/or legal counsel to perform and document your undue hardship analysis before deciding no reason accommodations are available.
Another important point to note from this list is requiring employees to accept an accommodation not agreed upon by employee. This reiterates the importance of the interactive conversation between the employer and employee. Once a request is received, the employer and employee should engage in dialogue to determine how to proceed and document this meeting. Be aware that solutions may vary by employee based on their individual need, so employers should not apply blanket practices to employees, such as requiring all pregnant workers to automatically transition to a certain position in their final trimester.
What may be new to some SC employers are the lactation accommodations. Under this Act, employers are now required to allow time and offer a private place, not a bathroom stall, for employees to express milk. The time allotment, frequency and logistics for this process should be discussed with the nursing employee to determine a schedule to meet the needs of both the business and the employee. While there is no requirement for this time to be paid, Fair Labor Standards Act (FLSA) regulations still apply for breaks of less than 20 minutes and for exempt pay deductions.
Employees have the right to be free from discrimination for medical needs arising from pregnancy, childbirth or related medical conditions.
From an administrative perspective, there are a few key action items employers will also need to note regarding policies, employee notices and postings.
- Handbook Policies - To align with the SC Pregnancy Accommodations Act language, it is recommended that employers review and update their Equal Employment Opportunity (EEO) handbook policy to add language to include “individuals affected by pregnancy, childbirth or related medical condition, including but not limited to lactation,” and their Americans with Disabilities Act (ADA) handbook policy to add language to include “individuals with medical needs arising from pregnancy, childbirth, or related medical conditions.”
- Employee Notice – Employers are also required to provide written notice “of the right to be free from discrimination for medical needs arising from pregnancy, childbirth or related medical conditions” new hires at the time of hire and to existing employees within 120 days of the effective date of this Act, which would be September 18, 2018.
- Posting Requirements – Employers are required to conspicuously post in an area accessible by employees a similar notice as referenced above, “… the right to be free from discrimination for medical needs arising from pregnancy, childbirth or related medical conditions.”
The regulatory arm of this Act is the SC Human Affairs Commission. Since they have not issued a specific employee notice or specific employer posting requirements at this time, this is will be something to continue to look out for. With this legislation being effective immediately, some law firms are providing suggested language for these documents now, which could be helpful for large and/or remote teams to meet the September 18th deadline.
While this precautionary measure does allow for more rollout time, if specific language is issued by the SC Human Affairs Commission (SCHAC), this may create additional work for your team. In either case, employers should ensure they are consistently accommodating pregnant workers and nursing mothers immediately as that due date has passed.
Whereas baby showers, bottles and gifts may be the way employees convey excitement for a colleague’s new addition, effective accommodations and fair treatment is the way employers show compassion and enthusiasm for their employee.