Infertility - A Tangled Web of Employee FMLA and ADA Rights (Part 1: FMLA Coverage)

by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel

June 12, 2023

 

Infertility. Hard to imagine a more emotional and personal health issue, and one that employers often won't realize an employee is experiencing. But it's not an uncommon problem. The condition is defined as when a couple is unable to get pregnant after one year of regular unprotected sex. For women over 35, that period is shortened to 6 months. It can also include a woman's inability to maintain a pregnancy to term.

But this is not a medical advice column, so we'll stick to our business and focus on whether the FMLA provides workplace protections for time off taken by employees undergoing infertility assessment and treatment. And although we had a lot of fun with our Oz-themed post last week, we’ll leave the humor out for this serious topic.

There's a lot in this blog post! We'll save infertility and employee rights under the Americans with Disabilities Act for an upcoming post.

Can an employee take FMLA-protected time off for infertility treatments?

Whether an employee's time off for infertility treatments is covered by the FMLA depends on whether the employee's situation meets one of the definitions of "serious health condition" under the FMLA. There are three possibilities that bear analysis:

• Inpatient care
• Incapacity plus treatment
• Chronic condition

Let's look at these in order.

Inpatient Care

The definition of a "serious health condition" includes inpatient care, defined as an overnight stay in a hospital, hospice, or residential medical care facility or any subsequent treatment in connection with such inpatient care. 29 C.F.R. § 825.114. This might be the easiest definition to apply. Internet research (a dangerous thing) indicates that most infertility treatments do not entail a planned overnight stay in a medical facility.^[1] But if it does occur, FMLA coverage is pretty clear cut.

However, "overnight" really means overnight, not just into the evening or during the nighttime starting after midnight. According to one federal court decision, the time the employee is admitted to the hospital must last "from one calendar day to the next." Bonkowski v. Oberg Industries, (3rd Cir. 2015) (employee seeking care at a hospital one evening but not officially admitted to the hospital until after midnight did not qualify for FMLA coverage)

Incapacity Plus Treatment

Another possible source of FMLA coverage for infertility is continuing treatment by a health care provider, specifically "incapacity plus treatment," which requires:

A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

• Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider OR
• Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 C.F.R. § 115(a)(1) and (2).

Some additional regulations further explain this definition. The term incapacity means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom. 29 C.F.R. § 825.113(b). An employee is considered incapacitated during absences caused by medical treatments for a serious health condition. 29 C.F.R. § 825.123(a). The term treatment includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. 29 C.F.R. § 825.113(c).

The health care provider certification is key.

Although appointments for infertility diagnosis and treatment might cause numerous recurring episodes of incapacity, these will rarely satisfy the more-than-three-consecutive-days requirement ("3+ days"). But regardless of what the employee has shared or what you think you know about the employee's condition, be sure to get a certification from the employee's care provider showing that the patient has had 3+ days of incapacity and has received the treatment(s) within the specified time frame(s) to satisfy the definition.

Infertility treatments can include a wide range of options including in-office procedures and drug therapies, used together, separately, or sequentially. Although most treatments do not cause 3+ days of incapacity, some treatments might. In addition, some patients may be directed to limit activities following treatments. How the particular patient reacts to and tolerates these various options is fact specific. Each case must be looked at individually. The information provided on the certification from the patient's health care provider is critical in determining whether the employee has satisfied the 3+ days of incapacity.

Even if the employee's infertility treatment itself doesn't cause 3+ days of incapacity, other related circumstances might satisfy that requirement. Examples include complications from infertility treatments, an underlying serious health condition that causes the infertility, and another serious health condition caused by the infertility, such as depression due to the inability to have a child. For this reason, we repeat: Be sure you have a complete and sufficient certification addressing the specific reason for the employee's absences now the subject of an FMLA request.

Timing of the treatments and incapacity.

The first definition of "continuing treatment" requires two or more treatments by a health care provider within 30 days of the first day of incapacity. The timing of that 2nd appointment can be beyond 30 days due to extenuating circumstances, such as the provider not having an open appointment time. The nature of infertility treatments might also justify a time between appointments longer than 30 days.

Under either definition of continuing treatment, the first (or only) in-person treatment visit must take place within 7 days of the first day of incapacity. This can be a tricky issue. Because infertility itself doesn't usually cause an inability to perform the essential functions of a position, that first day of incapacity might be the first date of the treatment itself, including any appointments needed to analyze and evaluate the employee's condition.

But what if 3+ days of incapacity doesn't occur until after there have been prior appointments for evaluation of the patient's condition and/or some treatments? Will the employee's FMLA coverage relate back to those earlier treatments because the employee now has the 3+ days of incapacity? Probably not. The explicit language of the regulation requires "[a] period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition." 29 C.F.R. § 115(a) [emphasis added]. Therefore, the 3+ days of incapacity might trigger the start of FMLA coverage, but the employee is unlikely to be able to bootstrap the earlier episodic treatments and incapacity into FMLA coverage under this definition.

But read on! What about...

Chronic Condition

Does infertility constitute a serious health condition because it is a "chronic condition"? We might be onto something here. According to the FMLA regulations, a job-protected leave is available for any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic conditionis one which:

1. Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;
2. Continues over an extended period of time (including recurring episodes of a single underlying condition); and
3. May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

29 C.F.R. § 825.115(c). Treatment for infertility can meet these requirements. As noted above, the time an employee spends attending medical treatments is considered a period of incapacity. No other type of incapacity is required.

At least one court has upheld an employee's right to proceed to trial on an FMLA interference claim based on her argument that her infertility was a chronic condition. According to the court, her evidence indicated that her infertility required periodic visits for treatment that continued over a course of years and caused brief, episodic periods of incapacity from working due to her treatment appointments. Sinico v. County of Lebanon (M.D.Pa. 2022).

Can an employee take FMLA time off for a family member's infertility treatment?

The analysis here follows the same path as when it is the employee requesting time off for their own infertility treatments. If the family member's condition meets one of the definitions of serious health condition, an eligible employee could very well take FMLA time to provide care to the family member. 29 C.F.R. § 825.112(a)(3). Once again, the health care provider's certification is the key. And remember, an employee can take FMLA time off to care for a parent or child with a serious health condition, not just a spouse as we might typically imagine.

Is treatment for infertility covered by the FMLA if it is voluntary?

Some employers question whether infertility treatment is covered by the FMLA at all because it is a choice, not a medical necessity. This imposes a value judgment on an employee's desire to have a child. Employers might want to steer clear of that minefield. But more to the point, many employers believe – incorrectly – that incapacity caused by voluntary medical treatment is excluded from coverage by the FMLA.

This misconception may arise from the regulation that states: "Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not serious health conditions unless inpatient hospital care is required or unless complications develop." 29 C.F.R. § 825.102. But read that again – this regulation does not differentiate based on whether the cosmetic treatments are voluntary. In fact, there is no mention of voluntary medical treatments in the FMLA statute or regulations one way or the other. If the condition meets one of the serious health condition definitions, it is covered.

Pings for Employers

When faced with an employee request for FMLA leave relating to infertility procedures:

• Handle the employee's request and communications with compassion and confidentiality. Dealing with infertility can be emotional and stressful.
• Don't assume you know whether the employee's request is covered by FMLA. Obtain a health care provider certification and review it immediately to see if it indicates the employee or family member has a serious health condition.
• If the form is not clear and complete, follow the FMLA procedures for clarification or for an incomplete or insufficient certification, as applicable.
• Remember the employee may tell you they are needing time for infertility treatments but actually the treatments are to address an underlying condition that is causing the infertility, or a situation like depression caused by the infertility. These circumstances might make it easier to establish the existence of a serious health condition even though looking strictly at the infertility does not.
• Don't jump to other conclusions. Men may need infertility treatments also,^[2] and an employee may want time off to care for a family member other than a spouse during treatments and incapacity.
• And as always, get legal advice from your employment counsel, especially if you are considering denying the employee's FMLA leave request or imposing discipline for "unexcused" absences.

Reliance Matrix Can Help!

At Reliance Matrix we administer FMLA leaves for hundreds of thousands of employees every year through our nationwide leave management services. Our Absence Management Specialists are well-trained on how to review health care provider certifications thoroughly to ensure we have all the information to which our employer clients are entitled, and how to follow up if anything is missing or unclear. They also understand that employees requesting leave for their own or a family member's serious health condition need assistance provided with compassion and understanding. For more information about our services, contact your Reliance Matrix account manager or send a message to [email protected].

Reliance Matrix is a branding name for Reliance Standard Life Insurance Company and its affiliated insurance and absence management services companies. Insurance products are provided by Reliance Standard Life Insurance Company (Home Office Schaumburg, IL), which is licensed in all states (except New York), the District of Columbia, Puerto Rico, the U.S. Virgin Islands and Guam, First Reliance Standard Life Insurance Company (Home Office New York, NY), which is licensed in New York and Delaware; Standard Security Life Insurance Company of New York (Home Office New York, NY), which is licensed in all states. Absence services are provided by Matrix Absence Management, Inc. (Home Office Phoenix, AZ).

Through its insurance and administrative services entities, Reliance Matrix offers integrated leave management services involving the FMLA, state-mandated paid family and medical leave and accommodation solutions. Product features and availability may vary by state. For more information, please contact your Reliance Matrix account manager, or reach us at [email protected].