By James E. Cox Jr.
Counsel, Wyche P.A.
It’s a situation that plays out every year in countless small businesses in the state: A valued employee is delighted to learn that she is pregnant, but unsure of how this development will affect her job. The questions she faces are numerous, difficult, and of the utmost importance to her entire family.
When does she tell her boss? What workplace accommodations is she entitled to receive? Do the accommodations depend on the difficulty of her pregnancy? Do the accommodations depend on the nature of her job or the size of the company?
Oftentimes (but certainly not always), the employer is genuinely happy for the employee, but is also unsure of the answers to these very same questions. These questions are often even more difficult for small businesses for several reasons. First, small businesses are less likely to have formal policies in place to address the issues. Second, small businesses are less likely to have dealt with similar situations in the past. Third, small businesses may find it more difficult to meet their legal obligations due to a relative lack of resources as compared to larger businesses. These factors all too often lead to ad hoc decision-making that is based more on stereotypes about pregnancy and individual experiences or beliefs than sound management practices.
The mutual uncertainty that employees and employers often face in this situation is why a new state law — the South Carolina Pregnancy Accommodations Act — is a welcome development for both employees and employers in the state. The law, which went into effect in May, does not significantly change pre-existing requirements for employers in accommodating pregnant workers, but it does provide important guidance that should result in a reduction in the incidence of discrimination against pregnant workers in the state.
The new state law does not materially change employer requirements because a federal law — the Pregnancy Discrimination Act — that prohibits discrimination against pregnant employees has been in place for 40 years. In general, the PDA mandates that employers with at least 15 employees must treat pregnant women in the same manner as other applicants or employees with similar ability to work. The Americans with Disabilities Act also provides protections to pregnant employees who have impairments related to their pregnancies that qualify as disabilities under the ADA. The Equal Employment Opportunity Commission provides useful guidance to small businesses regarding federal pregnancy discrimination laws on its website: https://www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm.
Given these federal laws, why is the South Carolina Pregnancy Accommodations Act important? There are several reasons. First, the mere existence of the law should create greater awareness of legal obligations among employers in the state. South Carolina is only the 24th state to require employers to offer reasonable accommodations for pregnant workers and among the first Southern states to do so. As our General Assembly recognized in passing the law: “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.” All South Carolinians should be proud that the state is keeping pace with other states in protecting the rights of pregnant workers.
Second, the SCPAA includes specific notice requirements that go beyond the requirements of federal law. Covered employers are required to (1) provide employees with written notice of their right to be free from discrimination on the basis of pregnancy, childbirth, or related medical conditions (new employees are to receive this notice upon hiring, and existing employees are to receive it no later than Sept. 14); and (2) post this notice in a conspicuous place. This notice requirement not only benefits pregnant employees and new mothers, it also benefits employers by reminding managers of SCPAA’s obligations.
Finally, the SCPAA contains specific guidance regarding the requirements for accommodating workers with medical needs arising from pregnancy that should be particularly helpful for small businesses. Some of the required accommodations for such workers include:
- Providing more-frequent bathroom breaks and longer break periods.
- 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.
The SCPAA also clarifies that an employer is not required to take any of the following steps to accommodate a pregnant employee, unless the employer does or would do so for other employees who need reasonable accommodations:
- Hire new employees that the employer would not have otherwise hired.
- Discharge an employee, transfer another employee with more seniority, or promote another employee who is not qualified to perform the new job.
- Create a new position, including a light-duty position for the employee, unless a light-duty position would be provided for another equivalent employee.
- Compensate an employee for more-frequent or longer break periods, unless the employee uses a break period which would otherwise be compensated.
It is also important to note that discrimination on the basis of pregnancy is illegal even if the employer thinks it is acting in the pregnant person’s best interests. Thus, the SCPAA also bars an employer from 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.
- Take leave under any leave law or policy if another reasonable accommodation can be provided.
A pregnant employee can enforce her rights under the SCPAA by filing a complaint with the state Human Affairs Commission within 180 days of the alleged discrimination (http://www.schac.sc.gov/aboutus/Pages/FilingAComplaint.aspx). The commission will then conduct an investigation that may lead to relief for the employee in the form of damages or a return to work.
Of course, the SCPAA will not eliminate pregnancy discrimination, but it may result in more pregnant workers being aware of their rights and managers being aware of their responsibilities when faced with questions about accommodating the pregnant worker’s role in the workplace. And that is a development that all workers and managers can cheer.