Protections for pregnant employees has significantly increased in the wake of the Equal Employment Opportunity Commission’s Enforcement Guidance on Pregnancy Discrimination (updated June 25, 2015) and the United States Supreme Court decision in Young v. United Parcel Services, Inc., — U.S. —, 135 S.Ct. 1338 (2015). But what about employees who are not yet pregnant but are instead struggling to conceive a child? Employees turning to assisted reproductive technology (“ART”) may require time away from work for things such as diagnostic testing, blood draws, ultrasounds and doctor appointments, as well as for other, more involved medical or surgical procedures.

Employers are increasingly seeking guidance regarding the legal requirements for employees seeking time off for infertility treatment or ART. Unlike pregnancy, infertility affects both men and women. While the law is still developing in this area, there are numerous statutes that need to be considered when deciding whether an employee may be entitled to time off for reasons relating to infertility treatments.

Pregnancy Discrimination Act/Title VII of the Civil Rights Act

The Pregnancy Discrimination Act (“PDA”) is an amendment to Title VII of the Civil Rights Act of 1964 (“Title VII”) and states that discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination. The federal courts of appeals are split regarding whether the PDA provides coverage for discrimination based on infertility treatment.

In Hall v. Nalco, a female employee was terminated for her absences from work while she was undergoing in vitro fertilization (“IVF”). The district court initially dismissed her case, finding that infertility would not be covered under Title VII because it affects both men and women and therefore could not be considered sex discrimination. However, the Seventh Circuit Court of Appeals (which includes Indiana) reversed the district court’s decision, finding that the employee was terminated for the “gender-specific quality of child bearing capacity” rather than the “gender-neutral condition of infertility.” The Court of Appeals reasoned that IVF involves surgical impregnation, which can only be performed on women, and thus could form the basis for a claim of sex discrimination under Title VII.

The Second and Eighth Circuit Court of Appeals, however, reached a different conclusion. In Saks v. Franklin Covey Co., the Second Circuit held that because infertility was a condition that affected men and women equally and because “surgical impregnation procedures” are used to treat both male and female infertility issues, excluding surgical impregnation as a covered benefit could not support a discrimination claim under the PDA or Title VII of the Civil Rights Act. In Krauel v. Iowa Methodist Medical Center, the Eighth Circuit Court of Appeals similarly dismissed claims under the PDA and Title VII on the basis that infertility affects both men and women.

While the Sixth Circuit Court of Appeals has yet to rule on this issue, a Michigan district court has also previously held in LaPorta v. Wal-Mart that because infertility is not a condition related to pregnancy or childbirth, it cannot support a claim under the PDA.

Americans with Disabilities Act

The Americans with Disabilities Act (“ADA”) prohibits an employer from discriminating against an employee on the basis of disability and requires that employers provide disabled employees with reasonable accommodation unless it would result in an undue hardship or direct threat. The ADA defines disability as “a physical or mental impairment that substantially limits one or more . . . major life activities” (citation omitted). Several sources suggest that individuals suffering from infertility issues could fall within the ADA’s protections. Courts addressing the issue have acknowledged that infertility is a physical impairment under the ADA. In 1998, the Supreme Court of the United States held in Bragdon v. Abbott that the ability to reproduce and bear children constitutes a “major life activity” within the meaning of the ADA and that an employee who is substantially limited in the major life activity of reproduction may qualify for protection under the ADA if measures cannot be taken that would correct the condition. Since then, the ADA Amendments Act of 2008 significantly broadened the definition of “disability” and explicitly noted that Congress intended the ADA to be read expansively and without regard to any positive impact of corrective measures. Thus, if an employee would have a physical impairment and be substantially limited in a major life activity without corrective measures, then the mere fact that a procedure exists that might correct the condition would no longer exclude that individual from the ADA’s protections.

In LaPorta v. Wal-Mart, the district court ruled that the employee’s ADA claim could proceed to trial, finding that infertility could constitute a disability under the ADA, and the employee’s request for a single day off – even with short notice – could be considered a reasonable accommodation.

These cases suggest that employers may have an obligation to provide reasonable accommodation, including but not limited to unpaid time off of work to employees who suffer from infertility.

Family Medical Leave Act

The Family Medical Leave Act (“FMLA”) may also, in some instances, provide employees with protected time off for reasons related to infertility. The FMLA entitles eligible employees to unpaid leave of up to twelve weeks because of a “serious health condition.” The FMLA defines “serious health condition” as an “illness, injury, impairment or physical or mental condition that involves inpatient care . . . or continuing treatment by a healthcare provider” (citations omitted). It is conceivable that an employee could demonstrate that his or her own infertility, or that of his or her spouse, constitutes a serious health condition under the FMLA.

Only one court has addressed whether the FMLA protects employees from adverse employment actions based on taking time off for infertility treatment. In Culpepper v. BlueCross BlueShield of Tennessee, the Tennessee district court found that an employer had a right to terminate an employee for five unexcused absences related to infertility treatment that were outside of her FMLA leave. The court relied on testimony from the employee and the employee’s physician. Although the employee testified that she took additional time off to recover from infertility treatment, the doctor never supported the employee’s contention that there was a medical need for that extra time off, and the employee did not present evidence that indicated a medical reason for an extended leave from work. The Sixth Circuit Court of Appeals (which includes Michigan) upheld the dismissal, finding that the employee had been granted six days of FMLA leave in accordance with the documentation she submitted from her physician and there was no evidence that the additional five days off the employee had taken were due to an FMLA-qualifying reason. While the court did not specifically determine whether infertility constitutes a “serious health condition” under the FMLA, the Culpepper decision suggests that infertility treatment could be covered under the FMLA where an employee is able to produce evidence that time away from work is medically necessary and falls under one or more FMLA-qualifying reasons.

Practical Takeaways

As outlined, the current state of the law regarding absences resulting from infertility treatment is unclear. Employers faced with the issue should request documentation from the employee confirming the medical need for time off. Employers should also review applicable workplace policies, including but not limited to reasonable accommodation policies, FMLA policies, leave of absence policies and other policies relating to family or personal leave.