Newly-Enacted South Carolina Lactation Support Act Impacts All In-State Employers

On June 25, 2020, Governor McMaster signed the South Carolina Lactation Support Act into law. The law became effective immediately, and all employers in South Carolina must now be prepared to comply with the Lactation Support Act’s requirements.

Understanding South Carolina Employers’ Obligations Under the Lactation Support Act

The Lactation Support Act imposes three primary obligations for employers in South Carolina: (i) an obligation to provide break time, (ii) an obligation to provide privacy, and (iii) an obligation not to discriminate against an employee who chooses to express breast milk in the workplace.

1. Obligation to Provide Break Time

First, employers must provide break time to employees who choose to express breast milk in the workplace. The Lactation Support Act states:

“An employer shall provide an employee with reasonable unpaid break time or shall permit an employee to use paid break time or meal time each day to express breast milk.”

While South Carolina employers already have an obligation to provide, “reasonable break time for an employee to express breast milk for her nursing child,” under the federal Fair Labor Standards Act (FLSA), this federal obligation applies to non-exempt employees only (i.e. wage-based employees who are entitled to overtime pay). The Lactation Support Act now extends the obligation to provide break time in order to express breast milk to all employees.

2. Obligation to Provide Privacy

Second, employers have an obligation to provide a private setting for employees to express breast milk during their break time. The Lactation Support Act continues:

“The employer shall make reasonable efforts to provide a room or other location, other than a toilet stall, in close proximity to the work area, where an employee may express milk in privacy.”

The Lactation Support Act does not establish specific requirements, other than those mentioned above, for the private locations employers must provide. As a result, employers may use an existing space if one is available, and the space provided does not have to be dedicated exclusively for use by mothers needing to express breast milk. However, it should be off limits to others while the mother is expressing milk.

3. Prohibition on Discrimination in the Workplace

Third, the Lactation Support Act prohibits employers from discriminating against employees who choose to express breast milk in the workplace. The law states:

“An employer may not discriminate against an employee for choosing to express breast milk in the workplace in compliance with the provisions of this section.”

This prohibition encompasses all forms of discrimination, including termination of employment, denial of raises and promotions, denial of other job-related opportunities, and assignment to undesirable job tasks or locations. The Lactation Support Act also prohibits employers from making hiring decisions based upon an applicant’s need for breaks and a private location to express breast milk in the workplace.

FAQs: Compliance with the South Carolina Lactation Support Act

Q: What employers are subject to the South Carolina Lactation Support Act?

The Lactation Support Act applies to all employers in South Carolina that have at least one employee.

Q: Are there any exceptions to the Lactation Support Act’s requirements?

Yes, the Lactation Support Act contains an exception for circumstances in which employers cannot reasonably comply with the Act’s requirements: “This section does not require an employer to provide break time if doing so would create an undue hardship on the operations of the employer.” Importantly, this exception applies to break time only—it does not excuse employers from providing a private location for their employees to express breast milk when allowing them to do so does not create an undue hardship.

As explained by the South Carolina Human Affairs Commission (SCHAC), determining whether compliance with the Lactation Support Act would result in “undue hardship” requires consideration of factors including:

• The size and financial resources of the employer;
• The nature of the accommodation required; and,
• The cost of the accommodation required.

The statute also provides protections for employers that make reasonable efforts to comply, providing that they must be held harmless in such circumstances.

Q: Do employers have to allow employees to schedule breaks at their discretion?

No. In addition to establishing obligations for employers, the Lactation Support Act establishes certain obligations for employees who choose to express breast milk in the workplace as well. Specifically the law states: (i) “break time must, if possible, run concurrently with any break time already provided to the employee;” and, (ii) “[t]he employee shall make reasonable efforts to minimize disruption to the employer’s operations.”

Q: When must employers start complying with the South Carolina Lactation Support Act?

The Lactation Support Act states that employers must comply within 30 days of SCHAC posting information about the Act on its website. SCHAC had until July 25, 2020 to post this information, and it is currently available in both English and Spanish.

Q: What are the consequences of non-compliance with the South Carolina Lactation Support Act?

If an employer violates the Lactation Support Act, the affected employee can file a complaint alleging unlawful discrimination. Depending on the circumstances involved, the remedies available to employees who experience discrimination in the workplace can include reinstatement, placement into a denied job position, back pay and benefits, and additional damages. As SCHAC explains, “the goal of the law is to put the victim of discrimination in the same position (or nearly the same) that he or she would have been if the discrimination had never occurred.”

Q: What should South Carolina employers do to ensure that they are compliant with the Lactation Support Act?

Businesses in South Carolina should review their policies with their employment counsel. If the company’s current policies do not allow break time to express breast milk, or if the company’s facilities do not include a suitable private location, then additional proactive measures may be necessary.

Speak with a South Carolina Employment Lawyer at Gignilliat, Savitz & Bettis, LLP

Do you have questions about your company’s obligations under the South Carolina Lactation Support Act? To speak with one of our South Carolina employment lawyers in confidence, please call 803-799-9311 or inquire online today.