On May 17, South Carolina’s Governor signed the Pregnancy Accommodation Act (“SC PAA”), requiring employers to provide reasonable accommodations to women affected by pregnancy, childbirth, and related medical conditions. The law is effective immediately. While the law provides some clarity on what constitutes a “reasonable accommodation,” it also leaves some important questions unanswered. Read on to learn more:
Covered Employers: Employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year are covered.
Eligible Employees: All employees are eligible for the SC PAA.
Reasonable Accommodations: The law specifies that the following non-leave related accommodations are reasonable, while also noting that the list does not exempt an employer from providing other accommodations:
- making existing facilities accessible;
- 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; or
- providing job restructuring or light duty, if available.
Leave-related Reasonable Accommodations: While the law doesn’t specifically provide that a leave of absence is a reasonable accommodation, it does include: 1) providing more frequent or longer break periods or bathroom breaks; and 2) providing modified work schedules. From a practical standpoint, this can include an intermittent leave of absence or reduced schedule, if supported by medical certification.
Undue Hardship: An employer is not required to make reasonable accommodations if the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business.
Certification: The law does not contain any documentation/certification requirement for employees, but an employer is entitled to determine whether an employee requires a reasonable accommodation. An employer should consider handling the procedural aspects of the SC PAA the same as employee leaves for other temporary disabilities. If the employer’s policy for other temporary disability leaves (applicable to both male and female employees) requires a physician’s statement to verify the leave period, then the employer may request a physician’s statement for SC PAA.
Job Protection: An employer cannot 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.
Notice: An employer must provide written notice of the right to be free from discrimination for medical needs arising from pregnancy, childbirth, or related medical conditions to new employees at the beginning of employment, and existing employees by September 14, 2018 (i.e. 120 days from the effective date of May 17, 2018). The notice also must be conspicuously posted at an employer’s place of business in an area accessible to employees.
Regulations: Notably, the SC PAA authorizes the South Carolina Human Affairs Commission to issue regulations to carry out the law, specifying that the regulations must not exceed the definition of “reasonable accommodation” requirements for employers under federal or state law. The SC PAA proves that the regulations may identify some reasonable accommodations addressing medical needs arising from pregnancy, childbirth, or related medical conditions that must be provided to an employee.
Is Leave as an Accommodation Required Under the SC PAA?
Numerous other pregnancy accommodation laws have been enacted over the last several years – and each has its own level of specificity when it comes to leaves of absence. For example, in Rhode Island, Delaware, Maryland, Nebraska, and the District of Columbia, the law explicitly requires employers provide a leave of absence, or “time off to recover from childbirth.” Other states, like Colorado, Minnesota, Nevada, and North Dakota, do not specify a leave of absence, but require any accommodation that is reasonable, depending on individual circumstances. Still other laws, like New Jersey’s, specifies that while it mandates reasonable accommodations, it “shall not be construed as otherwise increasing or decreasing any employee’s rights under law to paid or unpaid leave in connection with pregnancy or breastfeeding.”
South Carolina’s law clearly requires employers to permit modified work schedules if required by medical considerations. But it leaves open the issue of whether a continuous leave of absence would be required in circumstances where the employee has exhausted other forms of leave, such as the Family and Medical Leave Act. A review of the legislative history of the law indicates that when first introduced, the law defined “reasonable accommodations” as set forth in the Americans with Disabilities Act, which indisputably would have required a leave of absence as an accommodation. That portion of the law, however, was stricken in the final version. But the law also states that nothing in it “exempts an employer from providing other reasonable accommodations,” indicating that the list of possible accommodations is not exhaustive. As mentioned above, the law authorizes regulations, which will possibly be more inclusive in identifying reasonable accommodations.
What Employers Must Do Now
South Carolina employers are responsible for compliance with this law immediately. Employers should review and, if necessary, update any policies or handbooks, post and provide notice of the law as required, train appropriate personnel (Human Resources, Benefits, etc.) on how to manage the accommodation requests, and train supervisors and managers on South Carolina’s pregnancy accommodations so they can help spot covered absences or accommodation requests and enlist HR assistance in the interactive process.
Given the lack of clarity on what type of reasonable accommodations are required, employers should consider – in cases where an employee has exhausted other job-protected forms of leave – permitting a reasonable leave of absence to recovery from childbirth, if supported by medical certification.
What ReedGroup Is Doing
If you are using ReedGroup’s leave management services or software, we are updating our leave management platforms to encompass the new law, training staff and updating scripts, and incorporating South Carolina’s new law into Leave Advisor™.