Updates In Employment Law Leave In South Carolina, 0118 SCBJ, SC Lawyer, January 2018, #44
| Author | Matt Brown, J. |
| Position | Vol. 29 Issue 4 Pg. 44 |
Matt Brown, J.
There have been significant political, economic and social changes over the past year that will greatly impact employers, both nationally and in South Carolina.
According to a 2017 national survey of 1,229 in-house counsel, human resources professionals and C-suite executives from a variety of industries, 79 percent of the employers surveyed are currently concerned with compliance challenges arising from new or amended labor and employment requirements at the state and local levels. Consequently, 85 percent of employers are updating policies, handbooks and HR procedures; 54 percent are providing additional employee training; and 50 percent are conducting internal audits.1
Of the array of changes at the state and local levels, 59 percent of respondent employers have advised they have been most impacted by paid leave mandates, 48 percent impacted by background check restrictions and 47 percent by minimum wage increases.2
Additionally, a majority (51 percent) of respondents expect an increase in Equal Employment Opportunity Commission (EEOC) workplace discrimination claims related to criminal background checks and credit history checks arising from the pre-employment process to occur over the next year.3
Brief survey of South Carolina and federal leave laws
Paid leave
Generally, neither federal law nor South Carolina law sets forth requirements for private-sector employers (that are not government contractors) to provide employees with paid sick leave.4
However, there are myriad laws, including federal and state leave laws and federal and state anti-discrimination laws, that impact private South Carolina employers’ handling of employee leave requests on a day-to-day basis. Because South Carolina does not maintain more stringent statutory counterparts to the federal laws, South Carolina employers must be minimally compliant with federal anti-employment discrimination laws and regulations.
Pregnancy leave—South Carolina laws
There are no federal or South Carolina laws requiring paid pregnancy-related leave. However, South Carolina Human Affairs law prohibits employers of 15 or more employees from denying maternity leave to a pregnant employee.[5] In fact, the law considers any such denial of maternity leave to be an unfair discriminatory practice.6
Additionally, South Carolina employers that choose to provide paid sick leave to employees pursuant to an employer-provided health and/or disability insurance, or paid sick leave under the employer’s policy, may not deny such paid leave to a pregnant employee.7 Accordingly, policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, reinstatement and the accrual of seniority and other benefits must be applied to an employee with a disability due to pregnancy, miscarriage, abortion, childbirth and recovery on the same terms and conditions as they are applied to other temporary disabilities.8
Pregnancy leave—federal laws
There are three federal statutes that will impact a South Carolina employer’s handling of an employee’s pregnancy-related leave: the Pregnancy Disability Act (PDA); the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).
PDA
Similar to the South Carolina Human Affairs Law, discussed above, the PDA applies to employers with 15 or more employees.9 While the PDA does not necessarily require employers to provide paid leave to employees “affected by pregnancy,” employers are required to treat employees with disabilities caused or contributed to by pregnancy, childbirth or related medical conditions the same as employees that have disabilities related to any other medical conditions under the employer’s health or disability insurance or sick leave plans.[10]
Specifically, the PDA requires employers to treat employees with pregnancy-related disabilities the same with regard to commencement, duration, extensions of leave, post-leave reinstatement and any payments under the employer’s health or disability insurance plan or sick leave policy.11 To the extent an employer’s sick leave policy or disability insurance plan allows for disabled employees to be compensated during qualifying leave, the employer must similarly compensate an employee with a pregnancy-related disability.
FMLA12
The FMLA requires covered employers to provide eligible employees up to 12 weeks of unpaid leave in any 12-month period for, among other things, the birth or placement of a child for adoption or foster care.13 A pregnant employee may take FMLA unpaid leave intermittently for prenatal examinations or for her own serious health conditions, such as severe morning sickness.14 While South Carolina law is silent as to a private sector employee’s entitlement to leave related to adoptions, an eligible employee may take time off to care for a newly adopted child as part of their leave entitlement under the FMLA.15
ADA
Pregnancy-related impairments can constitute disabilities pursuant to the ADA. The EEOC’s position is that leave is a reasonable accommodation for pregnancy-related impairments and may be granted in addition to what an employer would normally provide under a sick leave policy for reasons related to that impairment.16
Additional leave laws impacting South Carolina employers
Bone marrow donation
South Carolina permits an employer who employs 20 or more employees at one or more sites in South Carolina to grant an employee a paid leave of absence so that the employee may undergo a medical procedure to donate bone marrow.17 Employees that work an average of 20 or more hours per week are eligible for such leave.18 However, the combined length of paid leaves of absence may not exceed 40 hours without the employer’s agreement.19
The employer may request medical certification from a physician of the need and purpose o f each paid leave.[20] If there is ultimately a medical determination that the employee does not qualify to donate bone marrow, the paid leave of absence granted prior to the determination cannot be forfeited and the employer is prohibited from retaliating against an employee for requesting or leaving under such a paid leave of absence.21
Voting leave
While there are no South Carolina laws requiring employers to provide their employees with time off from work to vote in an election, it is unlawful to discharge an employee from his or her employment because an employee exercises political rights and privileges guaranteed by the federal and state laws and constitutions.22
Jury duty and subpoena compliance
South Carolina provides statutory protection against the dismissal or demotion of employees in the public or private sector for compliance with a jury summons.23 However, an employer is not required to provide paid leave for compliance with a jury summons.24 An employer that dismisses or demotes an employee because the employee “complies with a valid subpoena to testify in a court proceeding or administrative proceeding or to serve on a jury of any court is subject to civil action in the circuit court for damages caused by the dismissal or demotion.”[25]
Leave for victims of domestic violence, sexual assault, stalking or victims of crime
A South Carolina employee is eligible for time off of work if the employee is a victim of a crime at issue in the legal proceedings, or the spouse, parent, child or lawful representative of a victim who is deceased, a minor, incompetent or physically or psychologically incapacitated.26
An employer may not reduce the wages or benefits of a victim who lawfully responds to a subpoena.27 However, if the employee is the subject of an investigation for, is charged with, or who has been convicted of or pled guilty or nolo contendere to the offence in question, the employee is not eligible for such time off.28
Volunteer emergency responder leave
While not a specific requirement to offer leave, an employer may not terminate an employee who responds to a declared state of emergency in his or her capacity as a volunteer freighter or volunteer emergency medical services personnel.[29]
Employment protection during quarantine
While not a specific requirement to offer leave, an employer may not terminate or otherwise discriminate against an employee who misses work while complying with a quarantine order. An employer may require such an employee to use annual or sick leave to comply with the quarantine order.[30]
Military leave
The Uniformed Services Employment and Reemployment Rights Act (USERRA) and the FMLA both provide federal protections for employees in the military or for certain family members of those serving in the armed forces. Additionally, South Carolina provides statutory protections to employees that serve in the state or federal National Guard.
USERRA defines employer to include every public and private employer in the United States and there is no minimum employee requirement.31 Under USERRA, rights to reemployment extend to all employees absent from work due to “service in the uniformed services,” which also includes absences from work for military training.32 USER-RA requires employers to reinstate employees returning from military leave who meet certain defined qualifications.
Under the FMLA, eligible employees may take leave for (1) any “qualifying exigency” arising from the foreign...
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