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May 2022: South Carolina Governor Signs Bill Banning Private Employer Vaccine Mandates

Update Applicable to:
All employers enforcing a vaccine mandate on their employees in the state of South Carolina

What happened?
On April 25, 2022, South Carolina Governor McMaster signed into law House Bill 3126 (HB 3126), which, among other things, bans state and local governments from imposing COVID-19 vaccine mandates as a condition of employment and provides certain protections for workers subject to private employers’ vaccination requirements.

What are the details?
HB 3126 went into effect immediately upon signage and will remain in effect until December 31, 2023, unless its provisions are extended by the South Carolina General Assembly.

Below are some points relevant to private employers (broadly defined in the law as “all employers other than state and political subdivisions”).

Unemployment Benefits

If a private employer terminates, suspends, or reduces an employee’s compensation because the employee fails to get a COVID-19 vaccination or booster, the employee is still eligible for unemployment benefits, subject to the usual statutory limits on amounts, duration, and other requirements.

Vaccine Incentives Permitted

Section 6 of the statute explicitly states that the law’s provisions do not prevent employers from encouraging, promoting, or administering vaccinations—or from offering incentives to employees who elect to be vaccinated. This section of the law refers to vaccinations in general terms, and thus this provision does not appear to be limited to COVID-19 vaccinations.

Prohibition on Extension of Vaccine Mandate to Independent Contractors/Third Parties

Under the law, if a private employer implements a vaccine mandate, it may not extend the mandate to independent contractors or other non-employees who provide goods or services to the employer, nor may it coerce such individuals and third-party entities into implementing their own vaccine mandates in order to maintain the business relationship with the private employer. However, the law does carve out an exception to this rule. This section of the law does not apply to federal contractors, employers seeking to become federal contractors, or those subject to a federal regulation where the applicable contract or regulation includes a valid and enforceable contrary requirement, and the employer submits an affidavit to the South Carolina Department of Employment and Workforce (SCDEW) attesting to that fact. This provision also does not appear to be limited to COVID-19 vaccination mandates.

Broader Exemptions

The law states that religious and medical exemptions “must be honored” with respect to any COVID-19 vaccine or booster requirement. Accordingly, any employer imposing a COVID-19 vaccine requirement on workers must extend broader exemptions than required by federal law:

  • Medical exemptions include the presence of antibodies, a prior positive COVID-19 test, or pregnancy. The law does not indicate exactly what an employee must present to his or her employer to secure this medical exemption (i.e., there is no specific requirement to submit a doctor’s note or physician statement, as is required in other states with similar exemptions from workplace vaccination requirements).
  • To claim a religious exemption, a person must provide the employer with a “short, plain statement” that receiving the COVID-19 vaccine and booster would violate a tenet of the person’s deeply held religious convictions.
  • As with the provision pertaining to third parties, this section of the law also contains a carveout from this requirement if the employer submits an affidavit to the SCDEW attesting to the fact that the employer is a federal contractor, is otherwise subject to a federal regulation that is contrary to the requirement or will be required to enforce a contrary provision if awarded a federal contract the employer has sought to secure.

Prohibits Vaccine Status Discrimination in Public Accommodations

The law prohibits places of public accommodation, including hotels, restaurants, hospitals, retail stores, movie theaters, and other such establishments from denying services based on an individual’s vaccination status. Private clubs and establishments not in fact open to the general public are not subject to this ban.

The law also provides similar limitations on public employers that wish to enact COVID-19 vaccination mandates with certain exceptions.

The law also extends the “South Carolina COVID-19 Liability Immunity Act” (Senate Bill 147), the state’s liability shield law, which previously expired on December 31, 2021. The liability protections against coronavirus-based claims for businesses covered under the South Carolina COVID-19 Liability Immunity Act now apply to all civil and administrative causes of action that arise between March 13, 2020, and December 31, 2023, and that are “based upon facts that occurred during this time period.”

For more information, please see the links below:

House Bill 3126 (HB 3126)

Senate Bill 147

Article 1Article 2

What do employers need to do?
Employers should review the links provided above and ensure their COVID-19 mandate policies are in compliance with the new law.

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.

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