Infertility is a rising problem in the United States, according to the U.S. Centers for Disease Control and Prevention (CDC). With many employees undergoing fertility treatments, there are concerns it will affect their jobs and make it difficult for them to take time off from work. One big question is, “Am I protected if I take time off from work?”
May Employees Take Unpaid Leave for Fertility Treatments?
When employees think of starting a family, the Family and Medical Leave Act (FMLA) may immediately come to mind. Employers may assume FMLA leave can be used only for giving birth and adopting a child. In certain situations, however, the leave could be used for fertility treatments.
The main issue to consider is whether infertility is considered a “serious health condition” entitling an employee to take leave under the FMLA. The answer is fact-dependent and varies from case to case. It’s possible the more invasive and time-consuming fertility treatments that require more time away from work, such as in vitro fertilization (IVF), may meet the requirements.
To take leave for infertility treatments under the FMLA, it’s essential the treatment the employee receives is for a serious medical condition, even if the surgery’s main purpose is to enable her to become pregnant.
Employees should be aware that using their FMLA leave for fertility treatments will count against the 12-week allotment they receive each year. If an employee believes she’ll get pregnant the same year she undergoes the fertility treatments, she may want to consider using sick days, personal days, and unpaid leave for the treatments or risk having less or no time available under the Act for childbirth.
What About Reasonable Accommodations for Infertility?
Under the Americans with Disabilities Act (ADA), an employer (including state and local governments) with 15 or more employees must provide reasonable accommodations in the workplace to employees with a disability, unless doing so would pose an undue hardship to the organization. A disability includes a physical or mental impairment that substantially limits one or more major life activities.
Because the ADA lists reproductive functionality as a major life activity, covered employers may have to reasonably accommodate employees with infertility issues. What is considered reasonable varies from case to case. For example, it may be reasonable to request a few days off for treatment, but it may be less reasonable to ask for an indefinite leave. Aside from providing reasonable workplace accommodations, employers cannot fire a protected employee for infertility disability.
Does this also mean employer-issued insurance policies have to cover infertility treatments? Probably not. If you provide the same health insurance coverage to all employees, there will likely be no ADA violation if the plan doesn’t cover infertility medical care.
Beware of Discrimination Claims
As many of you know, federal law prohibits employers from discriminating based on sex, which includes discrimination based on pregnancy and related medical conditions. Although infertility can affect both women and men, the medical care required to treat infertility may not be gender-neutral. For example, IVF treatments are provided only to women.
The net result is women in the workplace are more likely to be affected by infertility, thus more likely to need time off or flexible work schedules to undergo fertility treatments such as IVF. In those situations, if the employees are subject to adverse employment actions, such as demotions, wage cuts, or termination, they could have sex and pregnancy discrimination claims under the Pregnancy Discrimination Act of 1978 (PDA) and Title VII of the Civil Rights Act of 1964.
To illustrate, in Hall v. Nalco, an Illinois federal court ruled an employer violated Title VII, as amended by the PDA, when it terminated an employee who was absent from work to undergo IVF treatment. The court found there was evidence the termination was for her gender-specific quality of childbearing, which violated Title VII. Despite Hall, an employer’s actions based on fertility aren’t discriminatory as long as they affect both men and women.
Fertility Should Be Properly Addressed
When it comes to taking time off from work for fertility treatments, several statutes may protect the affected employees. An employee may use the ADA to make a disability claim and request schedule modifications to undergo fertility treatments, the FMLA to take time off from work without penalty, and the PDA and Title VII to argue sex discrimination if they are retaliated against because of their fertility treatments.