Parental leave and the push to offer working parents more flexibility in the workplace is in the news a lot lately, yet less commonly do you hear news regarding workplace rights of an infertile employee.
Infertility is a problem that impacts all areas of life – a person or couple suffering from infertility may struggle physically, emotionally, and financially in order to have a child. There is currently no employment legislation in place specifically related to infertility; however, there are multiple laws that may provide an infertile employee time-off for infertility treatment as well as protection from discrimination on the basis of infertility.
The Family and Medical Leave Act of 1993 (“FMLA”); the Americans with Disabilities Act of 1990 (“ADA”), and Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended by the Pregnancy Discrimination Act (“PDA”) are laws that offer employees and employers guidance for how to handle this sensitive workplace subject.
FMLA
The Family Medical Leave Act requires certain employers to allow 12 weeks, taken intermittently or consecutively, to eligible employees with a serious health condition. Infertility may qualify as a serious health condition if it involves continuing treatment and requires at least three consecutive days of incapacity. Examples of infertility treatment that may qualify for unpaid FMLA leave include surgeries to treat underlying medical conditions related to infertility like endometriosis or the removal of tumors or cysts. Similarly, diagnostic tests needed to determine whether an individual has a serious health condition may be considered continuing treatment by a healthcare provider and thus permitted as unpaid time off under FMLA.
ADA
To qualify under the Americans with Disability Act, an individual must have a physical or mental impairment that restricts them from doing activities that are of central importance. Generally, persons with infertility conditions are protected under the ADA because they have a physical impairment of the reproductive system that affects their major life activity of reproduction. Therefore, an employee who may not otherwise qualify for leave under FMLA could be entitled to time off or a reduced work schedule as a reasonable accommodation under the ADA. An employer must determine whether an ADA-covered disability exists and then examine whether an accommodation could be made to allow the employee to pursue the needed treatments without causing undue hardship to the employer.
Title VII/PDA
Both employees and employers should be aware that an employer’s denial of an employee’s request for leave or a reasonable accommodation for an infertility condition may lead to a discrimination claim. The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act to prohibit discrimination based on pregnancy, childbirth, or related medical conditions – arguably infertility. The basic principle behind the PDA is that women affected by pregnancy and related conditions must be treated the same as other employees on the basis of their ability or inability to work. According to the EEOC, employment decisions related to infertility treatments involve Title VII in some instances. In the most famous case to date, Hall v. Nalco Co., 534 F.3d 644, (7th Cir. 2008) the Seventh Circuit held that a woman terminated after taking time off to undergo IVF had a viable claim against her employer for sex discrimination under Title VII. In that case, the court determined that the female employee was terminated “not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.”
Takeaway for Employers
Without specific laws on infertility in the workplace, each case of employee leave for infertility related issues should be evaluated on an individual basis. Additionally, employers should apply all requests for leave in a consistent manner as to both men and women. If you have any questions on infertility rights for employees, consult your legal counsel or one of the employment attorneys at KingSpry.
heARTbeat is a publication of KingSpry’s Adoption Law and Assisted Reproductive Technology Law Practice Group. It is meant to be informational and does not constitute legal advice.
