May 2021 South Carolina HR Legal Updates

South Carolina Implements COVID-19 Liability Shield

Update Applicable to:
All employers operating within South Carolina.

What happened?
On April 28, 2021, Governor McMaster signed South Carolina’s COVID-19 Liability Immunity Act into law.

What are the details?
Under the law, any claim arising from any actual, alleged, or feared exposure to COVID-19 on the premises of a business or from the operations, products, or services provided by a business would be barred by immunity unless a plaintiff can show by clear and convincing evidence that the business: (1) engaged in conduct that was grossly negligent, reckless, willful, or intentional; or (2) failed to make any attempt to adhere to public health guidance.  Healthcare providers are also covered entities under the Act, but a different standard of proof (preponderance of the evidence) applies to certain acts or omissions in the healthcare setting.

To invoke immunity for acts or omissions related to COVID-19, covered entities would need to show “reasonable adherence” to applicable public health guidance.

The liability protection applies retroactively, meaning, employers are protected from claims arising between March 13, 2020 (the date of the governor’s declaration of a state of emergency) and June 30, 2021, or 180 days after the state of emergency is lifted in the future, whichever is later.

The bill can be read here.

What do employers need to do?
South Carolina employers should ensure they are making a good-faith effort to comply with all regulations placed on them by local and statewide entities, to take full advantage of the protection offered by this legislation.

July 2020: South Carolina Passes New Lactation Support Act

What happened?
South Carolina Governor Henry McMaster has signed into law the South Carolina Lactation Support Act.

What are the details?
The South Carolina Lactation Support Act (the Act) requires employers to provide reasonable break time, paid or unpaid, and reasonable space to workers wishing to express breast milk while at work. The Act was effective as of June 25, 2020. However, by July 25, 2020, the South Carolina Human Affairs Commission (SCHAC) will post compliance information related to the Act on their website. Employers will have 30 days after the SCHAC posts the compliance information online to become compliant with the new law.

The Act differs from federal law in that it applies to all employers, not just employers with 50 or more employees. The Act is also more lenient with the requirement of space provided by employers for employees to express milk. The Fair Labor Standards Act (FLSA) would not allow a bathroom to be used as the provided space to express milk. The Act does, however, allow for a bathroom to be used, provided it is not a simple bathroom stall. Most notable of the differences is that the Act does not make the one-year distinction that the FLSA makes. Employees will be able to request an accommodation to express breast milk beyond one year after the child’s birth.

The Act can be found here.

The SCHAC website can be found here.

What do employers need to do?
Employers should update their handbooks and policies to reflect the new requirements created by the Act. Employers should also provide training to supervisors and management-level employees on the Act’s requirements and how best to respond to a request for an accommodation related to expressing breast milk.