An employee is claiming that they are unable to perform an essential function of their job due to infertility treatments and may potentially need to miss work as a result. How should this be treated under FMLA, ADA, and/or the Pregnancy Discrimination Act (PDA)?
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Thank you for your inquiry regarding an employee’s need for leave/possibility of missing work while undergoing fertility treatments. Let’s take a look at each portion of your inquiry.
FMLA: As you are aware, the Family and Medical Leave Act (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 or requires “continuing treatment by a health care provider.”
Determination of what ailments constitute a serious health condition and continuing treatment is an extremely fact-specific issue, but it is certainly possible that some forms of fertility treatment, or treatment to address underlying medical concerns causing infertility, could satisfy these requirements.
If the fertility 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 .
ADA: Infertility may also meet the ADA’s definition of disability because it is a physical impairment that substantially limits the major life activity of reproduction. 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 accommodation could be made to allow the employee to pursue her needed treatments without causing undue hardship to the employer.
Pregnancy Discrimination Act: Finally, the Pregnancy Discrimination Act prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions (which may include infertility). Under this law, a woman 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.
So, in summary, this 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 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.