Does my employer have to give me time off for fertility treatments?

Question:

After trying to become pregnant for a couple of years, my husband and I have decided to start infertility treatment. I can schedule some of my appointments around my work schedule, but I'll also need some time off work. Does my employer have to give me time off for treatment?

Answer:

Although only a handful of courts have considered this question, it's likely that your employer does have to give you time off work for infertility treatment.

Infertility treatments, including hormone injections and in vitro fertilization, can be both time-consuming and time-sensitive. Like you, many women try to schedule their appointments around their work schedules, both to avoid disruptions at work and to maintain their privacy. However, because the success of some procedures depends heavily on timing, you may be unable to avoid missing work.

Two federal laws may give you the right to take time off work for infertility treatment. Both men and women can be treated for infertility. However, certain procedures, including IVF, apply only to women. For this reason, courts have found that firing an employee for taking time off work for IVF and other surgical procedures may be a form of sex discrimination, made illegal in the workplace by Title VII (the main federal antidiscrimination law).

You may also have the right to time of work under the Americans with Disabilities Act (ADA). The ADA protects employees with disabilities from discrimination, and it requires employers to provide reasonable accommodations to allow these employees to do their jobs. A disability includes any physical impairment that substantially limits a major life activity or major bodily function. Reproduction is a major bodily function, and infertility requiring treatment likely signals a substantial limit to that function.

Therefore, if you need time off for treatment, your employer must provide it as a reasonable accommodation for your condition, unless doing so would pose an undue hardship. Undue hardship means a substantial expense or burden, given the size and nature of your employer. Unless giving you the time of you need for treatment would create an extraordinary disruption of your workplace, your employer is likely required to provide it.

Lately, the Equal Employment Opportunity Commission (EEOC), the federal agency that interprets and enforces Title VII and the ADA, has shown special interest in issues of pregnancy discrimination and accommodation at work. In fact, the EEOC recently released enforcement guidance on these very topics, Pregnancy Discrimination and Related Issues. If your employer balks at giving you the time off you need, you might want to direct your manager or HR representative to the agency's website for more information. If that doesn't work, it may be time to consult with a lawyer.

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