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What does South Carolina’s new Lactation Support Act mean for employers?

Written by
FordHarrison LLP, nationwide U.S. law firm with a singular focus on HR law.
South Carolina has introduced legislation that will require all employers in the state to provide reasonable break time and space for lactating workers to express at work. This article provides details.

Executive summary

South Carolina Governor Henry McMaster has signed into law the South Carolina Lactation Support Act (SC Lactation Act or the ‘Act’), which requires all South Carolina employers to provide reasonable break time, paid or unpaid, and reasonable space to workers wishing to express breast milk while at work. The Act went into effect on 25 June 2020, and by 25 July 2020, the South Carolina Human Affairs Commission (SCHAC) will post on its website compliance information related to the Act. Employers must comply with the Act within 30 days of SCHAC posting this information.

Act specifics

Under the SC Lactation Act, employers are required to provide a reasonable amount of unpaid break time to employees wishing to express breast milk at work. Employees must also be allowed to use paid break time or meal time for such purposes, should they wish. However, an employer is not required to provide break time if doing so would create an undue hardship on its operations. The break time provided can also run concurrently with break time already provided to the employee.

The SC Lactation Act also requires employers to make reasonable efforts to provide a room or other location, other than a toilet stall, in close proximity to the work area, for an employee to express breast milk in privacy. Notably, the Act does not require an employer to construct permanent, dedicated space for expressing milk.

Similar to the South Carolina Pregnancy Accommodations Act, which prohibits discrimination against pregnant women in the workplace, the SC Lactation Act prohibits employers from discriminating against employees for choosing to express breast milk in the workplace. Employees can file a charge of discrimination with SCHAC if they believe their employer has taken adverse action against them for pursuing reasonable accommodation under the Act. However, employers will be held harmless from such action if they make reasonable efforts to comply with the Act.

Relation to federal law

The Fair Labor Standards Act (FLSA) already requires employers to provide ‘reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth.’ However, this requirement only applies to non-exempt employees and does not apply to employers with fewer than 50 employees, if providing this accommodation would cause undue hardship to their operations.

In comparison, the SC Lactation Act requires employers to provide accommodation for all employees to express breast milk regardless of whether they are exempt or non-exempt. Additionally, the SC Lactation Act does not place a one-year time limit for accommodating an employee wishing to express breast milk. This means that under the SC Lactation Act, employees requesting accommodation to express breast milk beyond one year after their child’s birth must still be provided with this accommodation.

Note that a bathroom, even if private, is not a permissible location to express breast milk under the FLSA. Conversely, the SC Lactation Act would permit the provision of a private bathroom, as long as it was not a mere toilet stall in an otherwise public bathroom.

Bottom line for employers

South Carolina employers should be watching SCHAC’s website in the coming weeks for information related to compliance with the SC Lactation Act. Once this information is posted, employers will have 30 days to comply. Employers should thus review their lactation support policies, employee handbooks, and any other related policies to ensure compliance with the Act. Employers should also provide training to supervisors and management-level employees on the SC Lactation Act’s requirements and how best to respond to a request for accommodation related to expressing breast milk.