Lawyers love their cocktail chatter. And at a recent bar event, an interesting hypothetical came up among lawyers:
Suppose an employee is trying to get pregnant and is thinking about infertility treatments. She’s considering time off for rest, and perhaps even for some in vitro fertilization (IVF) appointments. Perhaps even the doctor has said that the employee needs “light duty” work during certain days. Maybe things are a little more hazy; suppose the employee just says that they are undergoing infertility treatment and needs some time off.
Is the employer obligated to provide such an accommodation?
The answers aren’t entirely clear.
Let’s go through some of the laws that may be implicated:
- FMLA – As Jeff Nowak discussed in a 2015 post on the subject in his excellent FMLA Insights blog, the FMLA regulations do not “specifically address” IVF and thus it’s an open question whether the FMLA would apply. One court that looked into this said that an employee simply didn’t suffer from a “serious health condition” under the FMLA.
- Title VII – The EEOC’s 2014 Enforcement Guidance on Pregnancy Discrimination takes a much stronger approach. In doing so, it states that employers that fail to provide protective leave for IVF treatments will viewed as committing gender discrimination (if no other factors are considered:
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.
In doing so, the EEOC has cited to a Seventh Circuit case from 2008 which also found that the employer was liable for discrimination when it terminated employee for taking time off to undergo IVF.
- ADA – Infertility may be an impairment that may “substantially limit” the major life activity of reproduction. Why is this important? Because it may then qualify the employee under the ADA as having a “disability”. So, in such an instance, employers should review the “reasonable accommodation” portion of the statute. And the employer may decide that a day off for IVF treatment in “reasonable” under the circumstances.
- State Laws – Connecticut has comparable laws on the subject as well. Thus, employers should do the same analysis for CTFMLA and comparable state anti-discrimination laws as well.
But despite this, there are some courts — including the Second Circuit — that have found that a woman suffering from infertility does not have a medical condition related to pregnancy under Title VII and the Pregnancy discrimination Act because infertility is a condition that also affects many men as well.
Employers that have employees undergoing treatment for infertility should tread carefully in this uncertain area of law. Each set of facts should be looked at on a case-by-case basis and consider enlisting trusted legal counsel for advice.