In the U.S., the Family and Medical Leave Act (FMLA) does not cover fertility treatment leave. On the surface, it would make sense for FMLA to provide protection for people seeking fertility treatments, including in vitro fertilization (IVF), given that infertility is often considered a chronic condition. However, there are multiple topics at play, such as disability and gender discrimination, that cloud the issue of how this leave should be covered.
The New York Times reports that there are approximately 55,000 babies born annually in the U.S. to women who have undergone IVF treatment and that 12 percent of women have received infertility care. Living with infertility and undergoing extensive treatments negatively impacts a person's quality of life in many ways, including both mental and physical consequences. However, substantial change is required in many regions before infertility treatment is covered under legally mandated paid leave.
What Does the Family and Medical Leave Act Cover?
The FMLA, administered by the U.S. Department of Labor, is intended to protect workers who need extended time off for life events such as illness, medical treatment, childbirth or caring for a sick family member. FMLA allows for 12 weeks of leave per calendar year and only after one year of employment. Only certain types of businesses are required to allow FMLA, including those with more than 50 employees or government agencies.
FMLA allows individuals to use all 12 weeks at once or intermittently. FMLA is not paid leave, but employers may allow employees to use their unused sick or vacation time concurrently. This means that they would, in essence, be paid during their time off, but only until their available time was exhausted, at which point the leave would be unpaid. There is no official IVF FMLA policy or specific rules for other infertility treatments that may require taking time off.
Why Isn't Infertility Leave Covered?
As the Harvard Business Review points out, although the World Health Organization characterizes infertility as a chronic illness, treatments are not required to be covered by employer benefit plans in the U.S. This means that not only is the treatment itself not covered, but the employer is not required to allow paid sick leave to cover time off for treatment.
FMLA Insights writes that a 2009 appellate court case found that an employer did not have to provide infertility leave seeing as the employee did not need three consecutive days' leave on two different occasions for medical treatment (as defined by the FMLA). However, the Equal Employment Opportunity Commission (EEOC) states in their Enforcement Guidance on Pregnancy Discrimination that if women are penalized for taking time off for "surgical impregnation," this could be viewed as "unlawful sex discrimination." The EEOC further states that "an employer may not discriminate against an employee on the basis of pregnancy, childbirth or related medical conditions." Although pregnancy does not qualify as a disability, the Americans with Disabilities Act (ADA) provides some protection to pregnant women.
In pursuing a claim against an employer for violating the ADA or filing a sex discrimination lawsuit, the burden is on the infertility patient, after any discrimination has taken place. As the Harvard Business Review suggests, employers should address this issue head-on by having family-friendly policies in place to support employees of all genders experiencing infertility. However, very few businesses have established these policies; meanwhile, IVF coverage under insurance varies greatly by state. Currently, patients and any partners may worry about the career and financial costs of taking repeated days off work for IVF.
Advancements in the U.K. and Japan
In the U.K., infertility is not a disability under the law. Working Families describes a scenario similar to that in the U.S., but that requires some coverage under benefit plans. Women taking time off for infertility treatment must be treated the same way as any other person undergoing medical treatment. However, the law requires that absences due to IVF be covered under the usual sick leave policies.
Japan has recently approached this issue in a novel way. Due to the country's falling birth rate, Japan will begin offering 10 days of paid leave for public employees receiving fertility treatments, Kyodo News reports. Before leaving office, former Prime Minister Yoshihide Suga asked for fertility treatments to be covered by the public health insurance plan.
Until the time when infertility is handled in the same way as other medical conditions, patients seeking treatment need to be counseled and made aware of the legal protections and recourse available to them. Although they may be reluctant to disclose their personal health history at work, speaking with their employer and asking for flexibility with fertility treatment leave may be the best option for now.
