South Carolina has passed another state law protecting working mothers, this time in the form of supporting mothers who want to express breast milk in the workplace. Governor McMaster recently signed the bill into law, effective June 25, 2020.
The Act prohibits employers from discriminating against employees who choose to express breast milk in the workplace. Although employees were likely already protected from this type of discrimination, this protection is a statement of intent and provides a specific state law cause of action.
Importantly, the law requires employers to take reasonable steps to provide a designated area, near the workplace, in which employees can express breast milk in privacy. The Act does not require an employer to construct a permanent space for breast milk expression, but federal law prohibits designating a toilet stall.
The new law also requires that employers provide a reasonable amount of unpaid break time for lactation. Employers are allowed to require the break time to run concurrently with other break time.
Finally, the law provides that employers are not required to provide lactation breaks if doing so would cause the business an undue hardship. The undue hardship wording is something we see in other employment laws like the Americans with Disabilities Act. Employers should exercise caution in determining an undue hardship exists and seek legal counsel as the company will bear the burden to prove that hardship. In the author’s opinion, it would be a rare circumstance that providing lactation breaks would be an undue hardship.
By July 25, 2020, the South Carolina Human Affairs Commission is required to post information on its website to educate employers on compliance with the Act. Employers will then have 30 days to comply.
