Steven Eheart
Question: We have an employee who is undergoing fertility treatments out of town and misses days sporadically. Do these absences fall under the Family and Medical Leave Act (FMLA)?
Answer: Great question; complicated answer.
The answer is complicated because a question about FMLA leave is always the start of a longer conversation about whether other federal, state, and local requirements are triggered. For example, even if the employee’s fertility treatments do not qualify for FMLA leave, the employee may be entitled to unpaid leave as a reasonable accommodation or paid leave under state and/or local sick pay laws. Additionally, any adverse treatment against an employee undergoing fertility treatments could lead to a pregnancy discrimination claim.
The answer is also complicated because FMLA leave always depends on the facts. Further, only a couple federal district courts have addressed this issue, and those district courts came to different conclusions.
But let’s take a quick look at the relevant law. Employees are entitled to FMLA leave if they have a serious health condition. A serious health condition is an illness, injury, impairment or physical or mental condition that involves (a) inpatient care; or (b) continuing treatment by a health care provider. Qualifying inpatient care requires an overnight stay in a medical facility, including any period of incapacitation, or any subsequent treatment in connection with that inpatient care. Qualifying continuing treatment involves, among other things: (1) a period of incapacitation for more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same medical condition; or (2) a period of continuing incapacity due to a chronic health condition that requires periodic visits to a provider over an extended period. Incapacity is the inability to work or perform other regular daily activities due to a serious health condition, its treatment, or its recovery.
So how did the district courts apply the relevant law? In one case, the employee attended fertility treatments 15 times over a year and three months. Based on those facts, the court determined that the employee’s infertility might qualify as a serious health condition, and she might be entitled to FMLA leave. See Sinico v. Cty. of Lebanon, No. 1:18-cv-01259, 2022 U.S. Dist. LEXIS 163269 (M.D. Pa. Sep. 9, 2022). In another case, the employee’s fertility treatments never required overnight inpatient care, and the employee attended only three fertility treatments in one week, with each treatment lasting only a few hours. So, the employee’s infertility did not qualify as a serious health condition, and she wasn’t entitled to FMLA leave. Victoriana v. Internal Med. Clinic, No. 15-2915, 2016 U.S. Dist. LEXIS 133250 (E.D. La. Sep. 28, 2016).
The upshot? Treat a request for FMLA leave based on fertility treatments like any other FMLA leave request, and only determine the employee’s eligibility after reviewing the facts. And, as always, loop in employment counsel to discuss other triggered legal requirements and updates in the law.
