Navigating Pregnancy and Postpartum Employment Laws in the Workplace: A Guide for Employers

What employers does the PWFA apply to?
The PWFA applies to private employers with fifteen (15) or more employees and all government employers.

Who is a “qualified individual” under the PWFA?
All pregnant or nursing employees are eligible for PWFA protection. The PWFA defines the term “qualified individual” differently than the Americans with Disabilities Act (ADA). The ADA defines a “qualified individual” as one who can perform the essential functions of the job with or without accommodation. Under the PWFA, employees are considered qualified if their inability to perform an essential function is temporary and the function could be performed in the near future and reasonably accommodated.

What are reasonable accommodations under the PWFA?
Examples of reasonable accommodations under the PWFA include but are not limited to allowing sitting, access to closer parking, flexible work hours, appropriately sized uniforms, additional break time, use of leave for recovery and being excused from strenuous activities.

Under the PWFA, employers may not:

• Require covered employees to accept any accommodation. Employers must offer alternatives that are reasonable if the initial accommodation requested cannot be granted, and these should be discussed with the employee in an interactive process, permitting the employee to offer alternatives and providing explanations as to what will or will not work and why. In other words, the discussion should be a mutual conversation instead of a one-way conversation.
• Deny employment opportunities based on the need for accommodations.
• Require covered employees to take leave if another reasonable accommodation is available.
• Retaliate against employees for reporting or opposing unlawful discrimination.

South Carolina Lactation Support Act
The South Carolina Lactation Support Act requires employers to provide a reasonable unpaid or paid break time for expressing breast milk, depending on if the employer pays other employees for breaks. Employers must make reasonable efforts to provide a private location (not a bathroom) for employees to express milk.

DOL Guidance on the PUMP Act:

• Breaks:  Employers must provide reasonable breaks for expressing breast milk. The frequency, duration, and timing depend on the nursing mother's needs. While employers and employees can reach an agreement as to a schedule for the breaks, employers cannot require employees to adhere to a specific schedule and the schedules may be modified or changed.
• Compensation:  Employers must compensate employees for break time if they compensate other employees for breaks. The employer need only pay for the same number of breaks and time allotment that the employer pays for other employee breaks.
• Space Requirements:  Employers must provide a private, shielded, and intrusion-free space. Suggestions include vacant offices, partitions and locks on doors. The space must be accessible when the employee needs it.
• Small Employer Exemption: Employers with under 50 employees may be eligible for this narrowly defined exception and must establish undue hardship for any accommodation on an individual employee basis.

The PWFA, ADA and SCPAA all require employers to accommodate pregnant employees with job modifications. The inability to perform essential job functions should be analyzed carefully before denying any accommodation. The interactive process is required and should be documented. Undue hardship rarely applies but must be explained to the employee, assuming the accommodation cannot be granted, and this discussion should be documented.  A distinction between the ADA and PWFA is what is considered “undue hardship,” which is more narrowly construed under the PWFA than the ADA due to the presumed temporary nature of the accommodation under the PWFA.

Employers must consider leave entitlements under their own policies, the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and the Pregnancy Workplace Fairness Act (PWFA).  Employers should also apprise the employee of any paid benefits that might run concurrently with any approved leaves, such as the use of the employers’ provided paid leave benefits and/or any applicable short or long-term disability benefits.

Regarding the continuation of benefits while on leave, the FMLA requires health coverage to be continued at the same level when on leave. While the ADA does not have specific requirements, employers must not discriminate against employees who seek leave under the ADA.