About one in six couples seeks treatment for infertility. Nonetheless, many companies do not have policies ensuring accommodations for infertility treatments, pregnancy loss, and other medical conditions relating to conception and trying to have a child. This lack of policies places the burden on employees to seek help, but many doubt their employers will be understanding, or are reluctant to share their medical condition with employers.
Until companies develop policies addressing infertility treatments, employees must navigate a patchwork of laws that provide rights relating to various “medical conditions” or “disabilities.” These laws, although not specifically designed to help employees struggling with infertility, can be incredibly helpful and provide significant rights. Here is what you need to know.
Is Infertility a Disability Under State & Federal Law?
The Americans with Disabilities Act (ADA) is a federal law that applies to employers with more than 15 employees. In California, the state equivalent, the Fair Employment and Housing Act (FEHA), applies to employers with at least 5 employees. Both laws protect workers with permanent and temporary disabilities that impair major life activities.
It is generally acknowledged that conceiving and carrying a child are “major life activities” and that infertility and related conditions are protected under the ADA and FEHA. This means that your employer cannot discriminate against you based on these conditions. They are also required to reasonably accommodate you, including by permitting you a modified work schedule or leave of absence to attend appointments or undergo fertility treatments.
Can I Take Time Off Work for IVF?
Yes, if your employer is large enough to be covered by the ADA or its state equivalents. Employers covered by these laws are legally required to offer reasonable accommodations permitting you to obtain testing, diagnosis, or treatment for covered conditions. If you are seeking minor accommodations like a time off for appointments or a few weeks off for treatment or egg retrieval, these are almost certainly reasonable accommodations and nearly all employers should be able to offer them without undue hardship on the business.
You may also be entitled to leave under the Family Medical Leave Act (FMLA), the California Family Rights Act (CFRA), or state or local paid sick leave laws. Under the FMLA and CFRA, you are entitled to up to 12 weeks of job-protected leave for your own serious medical conditions, including infertility-related disabilities if you have worked for a covered employer for at least one year and 1,250 hours. There is no exception for undue burden; if you are eligible for leave under FMLA or CFRA, you are entitled to use it, even if your employer finds it inconvenient to run their business.
Examples of Infertility-Related Discrimination, Retaliation, and Failure to Accommodate
While one hopes that employers will be supportive while you deal with the stress and anxiety of infertility treatments, we have represented women who experienced discrimination because of their fertility issues.
For instance, one client submitted a doctor’s note requesting that she refrain from traveling to a country with Zika virus cases and was subsequently denied a promotion based on this request. In another case, a client requested time off for injections necessitated by her past history of infertility and preterm labor and was fired a week later. In yet another case, a client’s performance reviews plummeted and she was ultimately fired after taking several short leaves of absence to undergo egg retrieval and IVF. These are just examples of the forms infertility-related discrimination can take.
Often, infertility-related discrimination is strongly correlated with negative attitudes about motherhood more generally, and an unfair, biased, and discriminatory belief that once you have gone through “all that trouble” to become a parent, you will no longer prioritize work. This is the same biased assumption that plagues new mothers in the workforce and is unfortunately common in corporate settings. We often plead infertility-related discrimination claims as claims based on gender stereotyping for this reason.
Talk to an Experienced Employment Lawyer Today
At King & Siegel LLP, we have one of the leading pregnancy discrimination practices in California and we are experienced in helping people whose employers have forced them to choose between work and their human right to have children. If you believe you have been illegally discriminated against, our attorneys are here to help.
Need legal help? We provide free, confidential consultations to California workers. You should contact us as soon as possible to make sure your claim is still within the time limits set by law. If you have experienced employment discrimination relating to fertility treatments or infertility, contact us today through our website or give us a call at (213) 465-4802 to schedule a free consultation.