Is that all it takes to get you to click on my blog entry — make a reference to “sperm” in the blog title and post a silly photo of this little guy?  That was like taking candy from a baby!

Now that we have that behind us, I was posed an interesting question a few weeks back: Can a woman take FMLA leave for in vitro fertilization treatments?

What Does the FMLA Say on the Issue?

Given that the FMLA regulations do not specifically address in vitro fertilization treatments and since the courts have not ruled definitively on the issue, it is an open question whether the FMLA covers absences for in vitro fertilization treatments.

The employee arguably can take leave in this instance if she has a serious health condition that renders her unable to perform the functions of her position. 29 U.S.C. § 2612(a)(1)(D). So, does a woman who undergoes in vitro fertilization (IVF) treatments have a “serious health condition” protected by the FMLA?

According to the only court in the land that has addressed the issue in the context of the FMLA, the answer generally is, “No” — there is no FMLA protection. In 2009, a federal appellate court determined that an employee who took leave for IVF treatments was not protected by the FMLA because she was not required to take leave for more than three days at a time for the treatments (rendering her unable to show that she suffered from a serious health condition).  In this case, the court closely reviewed the employee’s FMLA medical certification, which stated that the employee would be required to take two separate three-day periods of intermittent leave (for a total of six days of leave) and work a reduced work schedule of two to three days per workweek during the leave periods.  Culpepper v. Blue Cross Blue Shield of Tennessee (pdf)  Using a rather straightforward analysis — that the employee had not required “continuing treatment” by a health care provider — the court determined that the employer was not required to provide FMLA leave in this instance.

As a related aside, I don’t see how the quality of dad’s sperm impacts this issue, as the female employee in question still would have to establish that she suffers from a serious health condition by way of the IVF treatments.  But I welcome your feedback if you think there is an angle here that would impact the FMLA question.

Not So Fast

The Culpepper case provides some authority as to the FMLA analysis of the issue.  But employers: let’s not be too quick to hit the FMLA denial button in these situations.  Why?  Keep reading…

Unless you’ve fit yourself securely under a rock lately, you know that the EEOC and United States Supreme Court recently have taken up the issue of pregnancy discrimination and accommodation. In short, given the authority below, employers run some level of risk in denying leave to an employee who seeks leave for IVF treatments.

Denial of Leave for Infertility Treatment May Lead to Gender/Pregnancy Discrimination Claims

In its July 2014 Enforcement Guidance on Pregnancy Discrimination, the EEOC told employers in no uncertain terms that failure to provide protected leave to an employee for IVF treatments will lead to an inference of gender discrimination:

Because surgical impregnation is intrinsically tied to a woman’s childbearing capacity, an inference of unlawful sex discrimination may be raised if, for example, an employee is penalized for taking time off from work to undergo such a procedure.   (See example 5 in EEOC’s Guidance)

Notably, EEOC’s guidance cited to an unfavorable court case for employers: Hall v. Nalco. In this 2008 case, Cheryl Hall worked as a secretary at Nalco, and she requested leave to undergo IVF treatments, which was approved. When she was to begin a second leave of absence for IVF treatments, she was told that her office was merging with another office and that only the secretary from the other office would be retained. Unfortunately for the company, there was evidence that decisionmakers decided to RIF Cheryl because she had missed work due to her IVF, and her supervisor marked down her performance evaluation, citing “absenteeism—infertility treatments.”

Cheryl filed a pregnancy discrimination lawsuit, claiming that she was dismissed because she was a female with a pregnancy related condition — infertility.   Although a federal trial court dismissed Cheryl’s claims on the basis that infertile women were not a protected class under the Pregnancy Discrimination Act (PDA) because infertility is a gender-neutral condition, a federal appellate court disagreed and allowed Cheryl to proceed with her discrimination claim.  The Court noted the following:

Employees terminated for taking time off to undergo IVF—just like those terminated for taking time off to give birth or receive other pregnancy-related care—will always be women. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure . . . Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.

Given the comments from supervisors and direct evidence of discrimination in comments made on her performance evaluation, the appellate court allowed her PDA claims to go to a jury.

Insights for Employers

Leave requested and taken for IVF treatments may very well not be protected by the FMLA unless the employee can establish an absence of more than three consecutive days plus continuing treatment. However, it’s likely a different story when the question is analyzed as one of pregnancy or disability discrimination.  And I have not even raised the issue of whether certain state laws would require leave or an accommodation in these situations. In fact, given the growing number of pregnancy accommodation laws at the state level, it is possible that IVF treatments may enjoy certain protection under various state laws.

So, don’t win the battle and lose the war: before you deny leave for IVF treatments, analyze your exposure to a gender or disability discrimination claim. As evidenced by the EEOC’s recent guidance and the Hall case, the EEOC and some courts suggest your exposure could be significant.

Hat tip: Thanks to my friends at UPMC WorkPartners for raising this issue with me. It’s a good one!