We’ve discussed the rights and protections of employees in the workplace based on sex, pregnancy, the need to care for a loved one, etc. But what about employees who seek treatment for infertility? Do the laws that provide the previously listed rights and protections also apply to those suffering from this condition? If so, how do they apply and to what extent? This piece will attempt to discuss some of these questions.
ADA: In General
The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination against a qualified individual based on disability and requires employers to provide reasonable accommodations to its employees with disabilities.
A disability as defined by the ADA as “a physical or mental impairment that substantially limits one or more major life activities.” The ADA lists reproductive functions as a “major life activity.”
A qualified individual is an employee who is capable of performing his or her essential job tasks, with or without reasonable accommodations.
Reasonable accommodations are reasonable physical and logistical changes to the workplace made by the employer to enable a qualified individual to perform his or her work functions.
According to the United States Supreme Court case Bragdon v. Abbott, 524 U.S. 624 (1998), infertility is considered a major life activity and therefore is a disability under the ADA. The law is clear that if an employee is discriminated against on the basis of his or her infertility, the employer violated the ADA. Of course, it is sometimes disputed whether an employee is infertile, but that is a medical issue rather than a legal issue.
But what about an employer who refuses to provide health insurance that covers infertility treatments to its employees? What if an employer refuses to provide limited time off for infertility treatments? Or how about a company that fires an employee for getting infertility treatment?
ADA: Infertility Treatment Insurance Coverage
Employers who refuse to provide infertility insurance coverage to their employees have not violated the ADA, as long as the failure to provide that coverage is nondiscriminatory. For example, if an employer provides the same health insurance plan to all of its employees, there’s probably no ADA violation if that insurance plan does not cover infertility medical care.
On the other hand, if certain employees are eligible for health insurance that covers infertility treatments while infertile employees are somehow not eligible for those insurance plans, there could be an ADA violation and/or other unlawful discrimination. However, if an employee’s employer-provided insurance plan does not cover infertility care, all is not lost. The employee may be able to receive insurance-covered infertility care through other avenues.
Some states may have certain health insurance coverage requirements for all policies written in their states. However, this implicates state, not federal law. For more information about which states require infertility care coverage, please visit the National Conference of States Legislature’s website section on “State Laws Related to Insurance Coverage for Infertility Treatment.”
Federal policies may also provide infertility treatment coverage, although not due to ADA requirements. Depending on the governmental policy, only certain types of infertility treatments or care may be covered.
For instance, the Department of Veteran Affairs covers infertility counseling, testing, and intrauterine insemination for veterans, although it does not cover in vitro fertilization. The Department of Defense provides coverage for in vitro fertilization treatments, but only for three cycles and only for active duty military members who have suffered catastrophic injuries or who are seriously ill. The Department of Defense in vitro coverage does not apply to veterans.
Members of Congress have introduced bills to allow veterans to receive coverage for in vitro fertilization, but they have not yet become law. The Washington Post’s article, “What Veterans Affairs Won’t Pay For: Chance for the Wounded to Have Kids,” explains some of the challenges that infertile veterans face when in vitro fertilization is the only viable fertility option.
ADA: Reasonable Accommodations
Not only can an employer not discriminate against employees on the basis of their infertility, but the employer must also reasonably accommodate employees’ infertility disability. This includes providing time off from work to obtain infertility treatments. Whether an accommodation under the ADA is reasonable is fact specific.
If an employee asks for indefinite leave, that may be considered unreasonable. But if an employee explains she just needs one day off for infertility treatment, the failure to provide that single day can be considered a failure to reasonably accommodate that employee. This type of fact pattern might also implicate another federal law, the Family and Medical Leave Act of 1993 (FMLA), which we will discuss in the next section.
If you have additional questions about the ADA, the Disability Rights section of our website may have the answers you are looking for.
FMLA: Protected Leave for Infertility Treatment?
Unfortunately, neither the FMLA nor case law has definitely declared whether leave for infertility treatments is covered by the FMLA. The crux of the issue depends on whether infertility is considered a “serious health condition,” which depends on the facts of each situation.
As we previously discussed in our article “What Qualifies As a ‘Serious Health Condition’ Under the FMLA?,” for infertility to be considered a serious health condition, the infertility condition must require “a hospital, hospice, or residential medical care facility; or continuing treatment by a health care provider,” and it must be substantial enough that it prevents an employee from working on a recurring basis or for more than a few days. However, no court has yet ruled on whether infertility qualifies as a serious health condition.
Because the infertility and its treatment must render the employee unable to work for more than a few days, it won’t be easy to argue that infertility is a serious medical condition, but in no way does it mean it can’t be done. It’s possible the more invasive and time-consuming fertility treatments (requiring more time away from work), such as in vitro fertilization, may meet these requirements, but no court has reached that conclusion.
Title VII and the PDA: Discrimination for Infertility Treatment
Under the Pregnancy Discrimination Act of 1978 (PDA) and Title VII of the Civil Rights Act of 1964 (Title VII), it is unlawful for an employer to discriminate on the basis of sex, which includes discrimination on the basis of pregnancy and related medical conditions. Even though infertility is gender neutral, the medical care required to treat infertility may not be.
For example, if an employee is fired for taking time off for in vitro fertilization treatment, that can be illegal discrimination in violation of the PDA and Title VII. This is because only women would likely require time off from work due to in vitro fertilization treatment. In other words, firing an employee based on child-bearing capacity can be discrimination based on sex, not infertility.
Even if a court were to decide that an adverse employment action due to infertility treatments was not sex or pregnancy discrimination, the employee could possibly have an argument that there is discrimination based on disability.
Additional information about the PDA can be found in the Pregnancy Discrimination section of our website.
Summing It Up
- According to the United States Supreme Court, infertility is a disability under the ADA.
- The ADA does not require employers to provide insurance coverage for infertility care, as long as the insurance coverage distinctions apply to all employees equally.
- Some states require that insurance policies in their jurisdiction cover infertility care.
- The Department of Veteran Affairs does not cover in vitro fertilization for veterans, but the Department of Defense covers in vitro fertilization for active duty service members only.
- Failing to provide reasonable accommodations in the form of a day off for an employee’s infertility treatment may constitute an ADA violation.
- The law is unclear as to whether the FMLA provides protected leave for infertility treatment. Whether time off for infertility treatment is covered by the FMLA depends on whether infertility is considered a “serious medical condition.”
- Title VII, as amended by the PDA, may protect employees from illegal sex discrimination when an employer fires the employee on the basis of taking time off from work for infertility treatments.
