Ask the Lawyer: Piecing Together Infertility Rights in the Workplace

Infertility impacts all areas of life – a person or couple suffering from infertility may struggle physically, emotionally, and financially in order to have a child. There is currently no employment legislation in place specifically related to infertility; however, there are multiple laws that may provide infertile employee time-off for infertility treatment as well as protection from discrimination on the basis of infertility.

• The Family and Medical Leave Act of 1993 (FMLA); the Americans with Disabilities Act of 1990 (“ADA”), and Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended by the Pregnancy Discrimination Act (PDA) are laws that offer employees and employers guidance for how to handle this sensitive workplace subject.
  • FMLA requires certain employers to allow 12 weeks, taken intermittently or consecutively, to eligible employees with a serious health condition. Infertility may qualify as a serious health condition if it involves continuing treatment and requires at least three consecutive days of incapacity.
• Americans with Disability Act (ADA): To qualify under ADA, an individual must have a physical or mental impairment that restricts them from doing activities that are of central importance. Generally, persons with infertility conditions are protected under the ADA because they have a physical impairment of the reproductive system that affects their major life activity of reproduction.
• Title VII/PDA: Both employees and employers should be aware that an employer’s denial of an employee’s request for leave, or a reasonable accommodation for an infertility condition, may lead to a discrimination claim. The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act to prohibit discrimination based on pregnancy, childbirth, or related medical conditions – arguably infertility.

Without specific laws on infertility in the workplace, each case of employee leave for infertility related issues should be evaluated on an individual basis. When dealing with legal issues as a result of infertility or infertility treatments, you should speak to an attorney experienced in the knowledge of Adoption/Assisted Reproductive Technology Law. Understanding the law and your options is paramount in the forefront of your journey.

Written by: Dorota Gasienica-Kozak, Esquire,
Chair of the KingSpry Adoption/ART Law Practice Group