We have an employee who has been trying to start a family for a long time. We have recently been advised that the female employee may be starting treatment for infertility and may need to take time off for those treatments. We are wondering what leave rights, such as FMLA, might be available to her and how to best support this effort.
In addition to any personal leave opportunities your nonprofit’s policy provides, there are several Federal laws that may afford the right for the employee to take time off for these treatments.
The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations, including leave, to disabled employees. If you’re wondering what this has to do with your situation, read on!
In 1998, the United States Supreme Court ruled that reproduction is a “major life activity” and infertility is a disability that interferes with that activity under the ADA. As a result, you would evaluate the request for time off for infertility treatment as a request for an accommodation. As in any situation when an employee makes a request for accommodation under the ADA, the request should be granted unless providing the accommodation would result in an “undue hardship.”
Also, as with any request for a disability accommodation, you should talk with the employee to find out how much time off may be needed for the treatments and any limitations they may require, along with identifying any other issues that may affect the need for time off and impact their work responsibilities. In general, if the infertility treatments consist of periodic office visits of a brief duration, providing that time off would rarely constitute “undue hardship,” although more extensive treatments of a longer duration or frequency might lead to that conclusion.
Secondly, the Pregnancy Discrimination Act of 1978 and Title VII of the Civil Rights Act of 1964 provide protections against discrimination to employees who are pregnant or who have pregnancy-related conditions. As an example, if you were to fire or discipline this employee for taking the time for these treatments, a claim for discrimination could be made under these laws. Taking this action could also lead to a claim for sex discrimination as well.
Since you mention FMLA, please understand that the protections under this law for employees seeking time off for infertility treatment might be less than you expect. FMLA regulations do not deal specifically with infertility and the courts have not definitively ruled on this issue.
As you probably already know, under the FMLA, a qualified employee has up to 12 weeks of leave for a “serious health condition.”
In one case involving in vitro fertilization treatments, the court determined the scheduling of treatment on two separate, three day sessions was not “continuing treatment” of three consecutive days of incapacity that FMLA requires to constitute a “serious health condition,” and further decided that these treatments do not fall under the protections of FMLA. This does not mean that all forms of treatment for infertility will fall outside FMLA protections. Each case must be carefully analyzed to determine if all conditions to qualify for FMLA exist.
As mentioned earlier, when an employee requests leave for infertility treatment, it’s a good idea to see if they qualify for a personal leave of absence under your nonprofit’s personal leave policy. Finally, it is important to remember that in addition to the Federal laws that may be involved in handling these leave issues, your State’s laws may also provide for leave under these circumstances. It is always appropriate to consult with experienced counsel for guidance.
In summary, there are a variety of workplace protections for employees who seek time off for infertility treatments. It’s essential to avoid any risks of claims of discrimination under these laws by working cooperatively with the employee, encouraging their efforts, and facilitating their process by providing the leave that will be needed to reach their goals to start a family. Hopefully, your efforts to assist in this process will have a positive outcome and in a short while, you will be writing me back to ask about pregnancy and maternity leave!
This article does not provide legal representation or legal advice. Nothing provided in this column should be used as a substitute for advice or legal counsel.
Mike Bishop is a member of the State Bar of California and has been admitted to practice in a number of Federal District Courts in both California and Ohio. During his legal career, he worked for 32 years with a Sacramento law firm where he focused on employment litigation in both State and Federal courts. During that time he defended employers in litigation. In 2016, he began his work as an Employment Risk Manger for the Nonprofits Insurance Alliance, assisting nonprofits in evaluating employment risks. He lives in Lakewood, Ohio and is a graduate of the University of California, Davis with a Bachelor’s degree in Political Science, and a graduate of the University of the Pacific, McGeorge School of Law.