Family and Medical Leave: Can an Employee Use Intermittent FMLA Leave for Fertility Treatments?

We have an employee who wants to use intermittent leave so she can receive fertility treatments. Do we have to let her do this? — Margot in Nevada City

The short answer is maybe. Your question actually begs a look at the bigger picture of whether fertility treatments qualify for leave under the federal Family and Medical Leave Act (FMLA), even before we get to the question of intermittent leave. To qualify for FMLA leave, an employee must have a serious health condition. The definition of “serious health condition” remains a frequent topic of debate. In general terms it is defined as an illness, injury (including a workplace injury), impairment, or physical or mental condition that involves 1) inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity or subsequent treatment in connection with the inpatient care; or 2) continuing treatment by a healthcare provider.

Does Infertility Qualify as a Serious Health Condition?

Although infertility itself is rarely life threatening, the problems that cause infertility may be considered a serious health condition if they involve continuing treatment. In general, the serious health condition involves continuing treatment if the employee cannot work for more than three days in a row and has been seen by a healthcare provider at least once for the condition, or is under a regimen of continuing treatment by the healthcare provider. So, if the infertility treatment causes more than three consecutive days of incapacity or requires continuing treatment, the condition is likely covered under the FMLA.

Some examples of infertility treatments that might qualify under the above analysis include diagnostic tests—such as blood hormone analysis, semen analysis, or post-coital tests—if they are necessary to diagnose a potential serious health condition. Also, surgeries to treat underlying medical conditions such as endometriosis or impaired sperm flow, to remove tumors or cysts, or to repair damaged reproductive organs could be covered by the FMLA, as could certain reproductive technologies such as in vitro fertilization.

Simple insemination procedures are unlikely to be considered a serious health condition unless a complication arises that requires prolonged hospitalization or bed rest. Additionally, treatment of depression brought on by infertility can qualify for FMLA leave if the employee receives continuing treatment by a healthcare provider and the depression makes the employee unable to work.

Must an Employer Grant an Employee Intermittent Leave?

Under the FMLA, an employee may request intermittent leave or leave on a reduced-leave schedule. The leave must be medically necessary (as distinguished from voluntary treatments and procedures), and it must be the kind of condition or medical treatment that is best accommodated through an intermittent or reduced-leave schedule.

Now to your initial question. To determine whether to grant the intermittent leave request, you will have to evaluate the medical certification the employee provides. Understandably, intermittent leave can be disruptive to workflow and the work environment, so employees who need intermittent FMLA leave or a reduced-work schedule must attempt to schedule their leave in a way that creates as few disruptions to the employer’s operations as possible.

Also, remember that you can assign an employee to an alternative position with equivalent pay and benefits that better accommodates the recurring leave periods.

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Don’t Forget the ADA When Evaluating Infertility Leave Requests

When discussing leaves of absence, we need to take into account some of the overlapping laws that might also provide an employee additional time off or additional rights.

A number of federal courts have held that infertility meets the federal Americans with Disabilities Act (ADA) definition of “disability” because it is a physical impairment that substantially limits one or more major life activities. These decisions are based largely on the U.S. Supreme Court’s determination in 1998 that reproduction is a major life activity.

What does this mean for employers? Employers may need to grant an employee time off to pursue infertility treatment as a reasonable accommodation. In 2002, the U.S. Equal Employment Opportunity Commission settled a disability discrimination suit with a New York employer that agreed to pay $135,000 to a former employee for damages she suffered when the employer terminated her rather than grant her leave to receive infertility treatments.

Real-World Practical Considerations Are Also a Factor

Although a good legal analysis is both helpful and necessary, it’s important to remember that employees going through infertility treatments are likely anxious and preoccupied. As long as you are consistent with all FMLA requests for regular and intermittent leave and the employee provides a legitimate medical need for the leave, consider erring on the side of granting the intermittent leave request. For those employers that want to be seen as “family friendly” and an employer of choice, providing time off for infertility treatments can make good business sense.

Allison West, Esq., SPHR, is principal of Employment Practices Specialists, LLC, an employment law training and consulting firm in Pacifica.