By Susan Schoenfeld, JD, Senior Legal Editor HR.BLR.com
What do you do when an employee asks for leave for infertility treatment? Is leave for infertility treatment available under the Family and Medical Leave Act (FMLA), theAmericans with Disabilities Act (ADA) or the Pregnancy Discrimination Act (PDA)?
According to the Center for Disease Control (CDC), infertility is a common problem in the United States. CDC statistics show that 6.7 million women – about 10% of women aged 15 to 44— have an impaired ability to get pregnant or carry a baby to term. Infertility is not only a woman’s problem— approximately 4 million (or 7.5%) of men younger than age 45 reported seeing a fertility doctor during their lifetime.
If an employee will be undergoing infertility treatments and must take leave as a result of the condition, how should the request for leave be treated under FMLA, ADA, and the PDA?
The FMLA requires covered employers to grant leave for a “serious health condition that makes the employee unable to perform the essential functions of his or her job.” A serious health condition includes a physical or mental condition that involves either inpatient care orrequires “continuing treatment by a health care provider.”
“Continuing treatment” requires a period of incapacity of more than 3 consecutive, full calendar days, and any subsequent treatment or period of incapacity for the same condition that also involves either:
- Treatment by a healthcare provider two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist; or
- Treatment by a healthcare provider at least once that results in a regimen of continuing treatment under the supervision of the healthcare provider. (The requirement for treatment by a healthcare provider means an in-person visit to that healthcare provider. The first (or only) in-person treatment visit must take place within 7 days of the first day of incapacity.)
Determination of what ailments constitute a serious health condition and continuing treatment is a highly fact-specific issue. While it is certainly possible that some forms of infertility treatment, or treatment to address underlying medical concerns causing infertility could satisfy these requirements, it may be that many claims of coverage fail based on the FMLA requirement of incapacity for more than 3 consecutive days.
If the infertility treatments qualify as a serious health condition, then the employee may qualify for leave to receive and recover from the treatments, in which case you would begin the standard FMLA notice and certification process.
According to guidance recently issued by the EEOC, employment decisions based on infertility also may implicate the ADA, since infertility that is, or results from, an impairment may be found to substantially limit the major life activity of reproduction and thereby qualify as an ADA-covered disability.
In its guidance, EEOC reasons that under the more expansive rules of the ADA Amendments Act of 2008 (ADAAA), the question of whether an individual’s impairment is a covered disability should not demand extensive analysis and that the definition of disability should be construed in favor of broad coverage. Under the ADAAA, there is no requirement that an impairment last a particular length of time to be considered substantially limiting.
In addition to major life activities that may be affected by impairments related to pregnancy, such as walking, standing, and lifting, EEOC also notes that the ADAAA includes the operation of major bodily functions as major life activities. Major bodily functions include the operation of the reproductive systems, and the operation of an individual organ within a body system.
Therefore, an employee who may not otherwise qualify for leave under FMLA could alternatively be entitled to time off or a reduced schedule as a reasonable accommodation under the ADA. Here the employer would simply engage in the interactive process to determine whether an ADA-covered disability exists and then, whether an accommodation could be made to allow the employee to pursue her needed treatments without causing undue hardship to the employer.
The PDA (and Title VII)
The PDA amended Title VII of the Civil Rights Act in 1978 to specifically prohibit discrimination based on pregnancy, childbirth, or related medical conditions (which may include infertility). The basic principle behind the PDA is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work.
Therefore, if other employees would be allowed to take leave or miss work for comparable medical treatments or needs, then the same privileges should be extended to this employee and she should not be treated differently simply because her request is based on a condition related to pregnancy.
According to the EEOC’s 2015 guidance on pregnancy discrimination, employment decisions related to infertility treatments implicate Title VII under limited circumstances.
Because surgical impregnation is intrinsically tied to a woman’s childbearing capacity, an inference of unlawful sex discrimination may be raised if, for example, an employee is penalized for taking time off from work to undergo such a procedure (citing Hall v. Nalco Co., 534 F.3d 644, 648-49 (7th Cir. 2008) (employee terminated for taking time off to undergo in vitro fertilization was not fired for gender-neutral condition of infertility but rather for gender-specific quality of childbearing capacity)).
So, in summary, an employee may be entitled to leave under a number of laws and theories. In this case it may be most practical to start with FMLA and determine eligibility there. If he or she is eligible for FMLA, then there is no need to take further action under the other laws unless FMLA is exhausted or the employee has additional accommodation needs. But if the employee is ineligible for FMLA, she may be eligible for the same leave as a reasonable accommodation under any of the other laws discussed.