The bill (H3865) was first introduced in the 2017-2018 session on February 28, 2017. The bill generally amended two section of the South Carolina Human Affairs Law (“SCHAL”); (1) section 1-13-30, relating to definitions under the SCHAL, revising the terms "because of sex" or "on the basis of sex" used in the context of equal treatment for women affected by pregnancy, childbirth, or related medical conditions, and revising the term "reasonable accommodation" pertaining to what this term may include, and; (2) section 1-13-80, relating to unlawful employment practices of an employer, by adding certain other unlawful employment practices in regard to an applicant for employment or an employee with limitations because of pregnancy, childbirth, or related medical conditions, as well as providing for notice and applicability to new and current employees to whom specific provisions apply. The Bill also contained provisions for certain public education efforts and regulatory oversight by the human affairs commission.

One of the key provisions was in Section 1-13-30(T) the South Carolina Code’s definition of what constitutes a “reasonable accommodation. The law now defines “reasonable accommodation” in the context of sex discrimination and pregnancy to include: (1) making existing facilities used by employees readily accessible to and usable by individuals … with medical needs arising from pregnancy, childbirth, or related medical conditions provided the employer shall not be required to construct a permanent, dedicated space for expressing milk; however, nothing in this section exempts an employer from providing other reasonable accommodations; and (2) for individuals with medical needs arising from pregnancy, childbirth, or related medical conditions providing more frequent or longer break periods; 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; modifying work schedules; however, the employer is not required to do the following, unless the employer does or would do so for other employees or classes of employees that need a reasonable accommodation: (i) hire new employees that the employer would not have otherwise hired; (ii) discharge an employee, transfer another employee with more seniority, or promote another employee who is not qualified to perform the new job; (iii) 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 (iv) compensate an employee for more frequent or longer break periods, unless the employee uses a break period which would otherwise be compensated.

Another key provision was the amendment to actions that are an unlawful employment practice. Those amendments appear in section 1-13-80(A) of the South Carolina Code. It is now an unlawful employment practice for an employer (1) to 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; (2) to 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; (3) to 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; (4) to 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 (5) to take adverse action against an employee in the terms, conditions, or privileges of employment for requesting or using a reasonable accommodation to the known. 

In addition, the law requires employers to provide written notice of these rights to new employees at the time of hire and current employees within one hundred twenty days of May 17, 2018 as well as conspicuously post notice of these rights in the workplace. The South Carolina Human Affairs Commission is to engage in public education and has been given the authority to promulgate regulations to carry out this standards.

Since the SCHAL was amended, these rights apply to those employers with fifteen or more employees. The small employer exception would still apply – i.e., those employers with less than 15 employees. While many of the items in the amendments to the SCHAL are already included in  guidance from the Equal Employment Opportunity Commission, the South Carolina law guarantees employees who are pregnant or new mothers reasonable workplace accommodations, which do not pose an undue burden on their employers, and protects them from having to either accept an unwanted accommodation or take a leave of absence when a more appropriate accommodation could be provided. Many accommodations cost little or nothing to employers: allowing more frequent bathroom or food breaks, permitting coworkers to assist with heavy lifting, providing a stool to sit on rather than standing for hours at a time. The statutory adoption is intended to reduce workforce turnover, increase employee satisfaction and productivity and save money on workers’ compensation and related costs. By giving women the flexibility to work while they are pregnant or breastfeeding, the statute’s intent is to encourage their continued contribution to the economy while safeguarding a workplace environment that values their well-being.

For more information on the BLR, click here. For more information on the South Carolina Employment Law Letter, click here.