by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
June 23, 2023
Did you miss our previous post? You can check it out here: Infertility – A Tangled Web of Employee FMLA and ADA Rights (Part 1: FMLA Coverage)
In a recent blog post we discussed how infertility may be covered by the Family and Medical Leave act (FMLA). Today we turn to the ADA. Is infertility a "disability" protected by the ADA? If so, is an employer required to provide reasonable workplace accommodations to an employee experiencing infertility? These are not easy questions. Here we offer our analysis and practical guidance.
Is infertility a disability under the ADA?
The answer to the first question is relatively easy. A disability is a physical or mental impairment that substantially limits one or more major life activities. The ADA Amendments Act of 2008 and supporting regulations specifically list the operation of reproductive functions as a major life activity. 42 U.S.C. § 12102(2)(B); 29 C.F.R. § 1630.2(i)(1)(ii).
Whether infertility substantially limits a major life activity, is also a slam dunk for the employee. Although this determination is to be made on a case-by-case basis, the ADA tells us that "[s]ubstantially limits is not meant to be a demanding standard." . . . An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting." 29 C.F.R. § 1630.2(j)(1).
Going out on a limb here, we would suggest that the inability to conceive or carry a child is indeed a substantial limitation on the major life activity of the operation of the reproductive system by whatever standard you apply.
Can the employer get supporting medical information?
Yes. You don't have to take the employee's word for it that he or she is experiencing infertility. When a disability and/or the need for an accommodation is not obvious, the employer is entitled to supporting medical documentation. 29 C.F.R. § 1630 Appendix, §1630.9. So, you can require a doctor's note verifying that the employee is experiencing infertility and what time off (or other accommodation) the employee will need to receive appropriate treatments.
Is an employer required to provide workplace accommodations for infertility?
Well then, it appears that an employee's infertility likely qualifies as a disability under the ADA. A typical "accommodation," regardless of the nature of treatment prescribed, is likely to be time off, either intermittently and/or as a block of several consecutive days. Now what? Does it necessarily follow that the employee is entitled to a workplace accommodation? Here's where it gets tricky.
In the context of a current employee, "reasonable accommodation" is defined as adjustments or modifications provided by an employer that enable a qualified individual with a disability to perform the essential functions of that position. 29 CFR §1630.2(o). Note that last phrase! In essence it says an employer may be required to provide an accommodation that enables the employee to perform the essential functions of the position. But if infertility itself is not impeding the employee's performance, then arguably an accommodation such as time off for treatment may not be required because the employee is not in need of an accommodation to perform the job.
But not so fast. A few years ago, the EEOC sued an employer for just that – failure to provide an employee with 3 days off for infertility treatment. The employer quickly settled the lawsuit by paying the employee $135,000, although that decision might have been influenced by the additional allegation of disability discrimination (based on her infertility) in the employee's termination. We can't tell. The complaint in the lawsuit, EEOC v. East Northport Residential Health Care Facility, (E.D.N.Y 2002), provides absolutely zero details regarding the legal basis for the employer's alleged legal obligation under the ADA to allow time off for the treatment.
The EEOC's allegations in East Northport seem to ignore the qualifier in the regulations that a reasonable accommodation is something that will enable the employee to perform the essential functions of the position. It also seems contrary to the Interpretive Guidance in the Appendix to the ADA regulations that explains an employer is not required to provide:
". . . adjustments or modifications that are primarily for the personal benefit of the individual with a disability. Thus, if an adjustment or modification is job-related, e.g., specifically assists the individual in performing the duties of a particular job, it will be considered a type of reasonable accommodation. On the other hand, if an adjustment or modification assists the individual throughout his or her daily activities, on and off the job, it will be considered a personal item that the employer is not required to provide.
29 C.F.R. § 1630 Appendix, §1630.9.
On the other hand, the EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA (Enforcement Guidance) supports an employer's obligation to provide time off for treatment of a disability as a reasonable accommodation, without any job-related qualifier. The EEOC's states, in the "Leave" section:
Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability. . .
An employee with a disability may need leave for a number of reasons related to the disability, including, but not limited to:
- obtaining medical treatment (e.g., surgery, psychotherapy, substance abuse treatment, or dialysis); rehabilitation services; or physical or occupational therapy; . . .
This example is not conditioned by "if needed for the employee to perform the essential functions of the position."
So, we have what seems to be conflicting "guidance": According to the ADA statute and regulations, an employer must provide a reasonable accommodation if it will enable the employee to perform his or her essential functions but is not required to provide personal benefits as an accommodation. But according to the EEOC's Enforcement Guidance, an employer must provide leave for medical treatment as a reasonable accommodation "when necessitated by an employee's disability," without any requirement that the need for leave is related to the employee's ability to perform the job. And, we know the EEOC sued at least once on this principle and the employer paid $135,000 to settle the case.
Does the ADA's prohibition against discrimination answer the question?
"Discrimination" is defined by the ADA regulations to include failure to make a reasonable accommodation to an employee with a disability. 29 C.F.R. § 1630.4(a)(2), §1630.9. But the ADA also specifically prohibits discrimination against an employee on the basis of disability in regard to the terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). Thus, another way to look at the employer's obligation here is to consider whether you allow employees with medical conditions other than infertility to use paid or unpaid time off for treatment of the medical condition (a privilege of employment). If so, you need to allow such time off for the employee with infertility issues, regardless of whether you are legally required to provide the time off as an "accommodation."
Conclusion? The Employer's Best Choice
So where are we? We have no clear ADA answer for employers faced with a request for time off for infertility treatments. Every situation will need to be evaluated on its specific facts such as the nature of the employee's condition, the recommended treatment, the employee's position, your company policies, and so on. But consider:
- According to articles on the internet, most infertility treatments do not require extensive time off.
- Despite conflicting authority from the ADA statute, the regulations, and EEOC guidance, it is the EEOC who will be investigating any employee charge of discrimination – and we know where the EEOC stands!
- The employee might be entitled to the time off under the FMLA (see our earlier blog post), state laws, or your company policies, so taking a stand on the ADA issue might be unnecessary.
- And ask yourself, what kind of employer do you want to be? A family-friendly employer will err on the side of providing time off.
Pings for Employers
- Be sensitive in your conversations with your employee and managing the situation. This is likely an emotional and anxious time for the employee. Also, remember that employee medical information in an employer's hands is always confidential and infertility is a very personal issue.
- Get medical documentation supporting the employee's infertility and the requested time off for treatment. Even if you trust that the employee is getting treatments for infertility, medical documentation will enable you to understand and plan for the time off the employee needs – whether as an accommodation or otherwise.
- But don't overdo it. Don't ask for more medical information than is needed to verify the employee's infertility diagnosis and the time off needed for treatments.
- Consider your other time-off policies and under what conditions employees can take a leave of absence for other medical conditions, and apply those in a nondiscriminatory fashion.
- Remember there might be an appropriate accommodation(s) other than, or in addition to, time off for treatment. Review the documentation from the employee's provider and be open to other needs.
- Always consult with your employment attorney if you find yourself in a complex situation or are considering denying the employee time off for infertility treatments or some other accommodation.
- And again, consider what kind of employer you want to be.
Reliance Matrix Can Help!
At Reliance Matrix we administer ADA accommodations for thousands of employees every year through our nationwide Workforce Accommodation services. Our Accommodation 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 a condition like infertility 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].