Legal Clinic

Procreation Problems

The Legal Clinic this month deals with the impact of the FMLA on an employee's infertility treatments -- as well as other federal laws that may produce repercussions for employer actions. It also discusses whether the FMLA covers time off following the death of a newborn.

Tuesday, November 2, 2010
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Question: Can you tell me if intermittent Family and Medical Leave Act leave is available to cover infertility treatments? In other words, do infertility treatments qualify for coverage under intermittent FMLA?

Answer: It is still an open question whether the FMLA covers infertility treatments because the statute itself and applicable regulations do not specifically address the issue. Further, federal courts have not ruled definitively on this issue, even though they have speculated on arguments for and against FMLA coverage.

In light of both legislative silence and the judicial uncertainty on the issue, employers should be especially careful not to take any action that may interfere with FMLA-leave rights. Moreover, employers should appreciate that there is potential for liability under federal-discrimination statutes, such as Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, and the Americans with Disabilities Act, where the law is more clearly defined regarding in-vitro-fertilization rights of employees.

In general, the FMLA requires that covered employers allow eligible employees up to 12 workweeks of unpaid leave in a 12-month period for any FMLA-qualifying reason. 29 U.S.C § 2612(a)(1). A qualifying reason includes:

* The employee's care for a newborn son or daughter,

* The placement of a son or daughter with the employee for adoption or foster care,

* The employee's care for a spouse, son, daughter or parent with a serious health condition,

* An employee's own serious health condition that makes him or her unable to perform the primary functions of the job, and

* Because of a qualifying exigency relating to U.S. military service. Id. Further, family or medical leave for a serious health condition may be taken intermittently when medically necessary. 29 U.S.C § 2612(b)(1).

Of the five FMLA-qualifying reasons listed above, the only one arguably applicable to an employee's infertility treatment is his or her own "serious health condition" 29 U.S.C § 2612(a)(1)(D), and the FMLA defines a "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11).

Serious Health Condition

The employee seeking leave has the burden of establishing "the objective existence of a serious health condition." Bauer v. Varity Dayton-Walther Corp., 118 F.3d 1109, 1112 (6th Cir. 1997). The FMLA regulations expand on the statute, defining continuing treatment by a healthcare provider as a period of incapacity of three or more consecutive days, and any subsequent, related regimen of treatment under the care of a healthcare provider as defined by 29 C.F.R. § 825.115.

Further, "[t]o invoke the protection of the FMLA, an employee must provide notice [in addition to a] qualifying reason for requesting the leave." Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 723 (6th Cir. 2003) (quoting Brohm v. JH Props., Inc., 149 F.3d 517, 523 (6th Cir. 1998)); see also 29 C.F.R. § 825.302(a) ("An employee must provide the employer at least 30 days advance notice before FMLA leave is to begin if the need for the leave is foreseeable based on ... planned medical treatment for a serious health condition.").

Turning back to the main point of the reader's question -- assuming arguendo that infertility treatment qualifies as a serious health condition and the employer received proper notice, the FMLA affords protection to employees in the event that they suffer interference with the free exercise of their rights. 29 U.S.C. § 2615(a)(1) and (2).

In other words, "The Act's prohibition against 'interference' precludes an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights" (such as intermittent leave). 29 C.F.R. § 825.220(c).

Therefore, employers cannot use the taking of intermittent FMLA leave as a negative factor in employment actions, such as hiring, promotions or any disciplinary actions.

One case, in particular, discusses at length the circumstances surrounding an employee's absence for infertility treatments. Without deciding whether infertility treatment qualifies for FMLA leave, the Sixth Circuit Court of Appeals (which hears cases from district courts in Michigan, Ohio, Kentucky and Tennessee) nevertheless provides valuable guidance to employers by presenting the arguments of both the employer and employee.

In Culpepper v. BlueCross BlueShield of Tennessee, Inc., 321 F. App'x 491, 492-93 (6th Cir. 2009), the doctor concluded that the employee's in-vitro fertilization was a "serious health condition" because the plaintiff "will be taking medication that requires close monitoring by ultrasound and lab work" and "[s]he will also be undergoing two (2) outpatient surgical procedures." Id.

The doctor required that the plaintiff take two three-day periods of intermittent leave (a total of six days of leave) during the designated treatment period. Id. at 493. (These "episodes of incapacity" or "treatment" took place during the egg retrieval and transplantation process achieved through outpatient-surgical procedures.). Id.

In addition, the doctor recommended a reduced work schedule of two to three days per workweek in conjunction with the plaintiff's two leave periods, for the in-vitro-fertilization process required "approximately 15 visits" and "weekly lab tests and office visits." Id.

The plaintiff went forward with the in-vitro-fertilization process even though her FMLA leave had not yet been authorized by the employer. Id. In fact, she did not report to work for 11 days. Id. She claimed that she was physically unable to work during this time frame because she "was sore from the surgery" and was on medication that had an adverse effect. Id.

However, the employer denied plaintiff's requested FMLA leave on the ground that the certification she provided "[wa]s insufficient to establish [her] need for leave since the health care provider did not certify that a serious health condition existed under the FMLA." Id.

The parties disputed whether plaintiff's in-vitro-fertilization procedure constitutes a "serious health condition." Id. at 496. The issue was, thus, whether plaintiff's five unexcused absences that led to her termination under BlueCross's IRP were protected by the FMLA. Id.

The court did not rule on the issue, however, for even assuming arguendo that the FMLA applied to infertility treatment, the plaintiff's claim failed for other reasons. Id.


Employers should note that, even if the employer must grant intermittent leave under the FMLA for infertility treatment, the employer may still limit the employee's options.

For instance, if an employee requests intermittent leave, or leave on a reduced-leave schedule, that is foreseeable based on planned medical treatment, the employer may require the employee to transfer temporarily to an available alternative position offered by the employer as long as the employee is qualified, and the position: (1) provides equivalent pay and benefits; and (2) better accommodates recurring periods of leave than the regular employment position of the employee. 29 U.S.C § 2612(b)(2).

Implications for the Pregnancy Discrimination Act

Also, subject to the approval of the healthcare provider, the employee would have to consult with the employer when planning medical treatment and make a reasonable effort to schedule the leave so as not to disrupt unduly the employer's operations. 29 C.F.R. § 825.302. This would include, presumably, scheduling infertility treatment so as not to conflict with business trips or other important meetings or deadlines.

Finally, as noted earlier, employers may encounter liability outside of the FMLA. For instance, in Hall v. Nalco Co., 534 F.3d 644 (7th Cir. 2008), the Seventh Circuit Court of Appeals (which hears cases from district courts in Illinois, Indiana and Wisconsin) determined that the PDA applies to women receiving infertility treatments.

The defendant discharged the plaintiff-employee for missing work to undergo in-vitro fertilization. The employee alleged that her discharge was "because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k).

The Seventh Circuit disagreed with the lower court's ruling that "infertility is a gender-neutral condition entitled to no protection under the language of the PDA." Hall, 534 F.3d at 647-649. To the contrary, it found that an adverse employment action based on child-bearing capacity is discrimination based on sex.

In EEOC v. Menard Inc., No. 08-0655-DRH, 2010 U.S. Dist. LEXIS 5467 (S.D. Ill. Jan. 22, 2010), the Southern District of Illinois continued the trend of the Seventh Circuit with respect to infertility treatments.

Here, the employer demoted the plaintiff-employee, a female department manager undergoing in-vitro fertilization. As a result of her demotion, employee's pay dipped from $11.40 per hour to $9.75 per hour. She also lost cost-of-living and merit raises.

The company asserted that the adverse employment action was a result of plaintiff's poor work performance. Nevertheless, the court agreed with employee, deciding that she had established a prima facie case of sex discrimination under the PDA.

Implications for the Americans with Disabilities Act

Courts have determined for some time that pregnancy is not a disability under the ADA. See, e.g., Dantuono v. Davis Vision Inc, No. 07-CV-2234, 2009 WL 5196151 (E.D.N.Y. Dec. 29, 2009).

However, the breadth of the ADA Amendments Act of 2008 may allow pregnant employees to claim that they were "regarded as" disabled by employers taking adverse action against them for pregnancy-related reasons.

For further discussion on recent developments in pregnancy discrimination law, see Bettina B. Plevan and Daniel L. Saperstein, "A New Look at Gender Discrimination" in Employment Discrimination Law and Litigation 2010 (PLI 2010).


In sum, employers must be careful when developing and implementing their practices and policies concerning employee-infertility treatments. Even if such treatment is not covered under the FMLA, the employer may still suffer legal repercussions for "discriminating" against the employee.

Question: We have an employee on FMLA and, unfortunately, her baby passed away during her leave. Do we, as the employer, have a legal obligation to continue to honor the 12 weeks of leave since her baby has since died? If we honor the 12 weeks of leave, will there be any repercussions down the line?

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Answer: The law is relatively certain that the FMLA does not permit leave to "care for" a covered family member after that family member's death.

As mentioned in the prior question and answer, an employee may need leave "to care for" a spouse, son, daughter or parent. Under the FMLA, an employee is entitled to leave "[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter." 29 U.S.C. § 2612(a)(1)(A). See also 29 C.F.R. § 825.112(a)(1). However, an employee's entitlement to this type of leave expires 12 months after the date of the newborn's birth." 29 U.S.C. § 2612(a)(2).

Once the 12-month period for "newborn" leave expires, an employee may then take leave to "care for" the child under 29 U.S.C. § 2612(a)(1)(C), provided the child has a serious health condition.

To protect employers from abuse, an employee may have to verify that he or she is needed to care for an ill child, spouse or parent. See 58 Fed. Reg. 31801.

Employers should note that the Act itself does not elaborate on the "to care for" phrase, but the regulations do, albeit in a different statutory context. Under the medical-certification provisions of the Act, an employer may require the employee to furnish certification that he or she is "needed to care for" certain family members. 29 U.S.C. § 2613(b)(4)(A).

It is the "needed to care for" phrase of the medical-certification provision that the regulation addresses. 29 C.F.R. § 825.124. Several courts have assumed without deciding that 29 C.F.R. § 825.124 applies to 29 U.S.C. § 2612(a)(1)(C) (see regulations for further edification).

The case law is rather clear, however. In Beal v. Rubbermaid Commercial Products, 972 F. Supp. 1216, 1226 (S.D. Iowa 1997), aff'd, 149 F.3d 1186 (8th Cir. 1998) (unpublished table decision), the court stated emphatically, "Leave is not meant to be used for bereavement because a deceased person has no basic medical, nutritional, or psychological needs which need to be 'cared for.' "

"Put simply, if Congress wanted to ensure that employees on FMLA leave could take additional time off after a family member died from a serious health condition, it easily could have said so in the statute." Brown v. J.C. Penney Corp., 924 F. Supp. 1158, 1162 (S.D. Fla. 1996).

In Hoban v. WBNCC Joint Venture, No. 06-13142, 2007 WL 1101217, at *1 (E.D. Mich. Apr. 5, 2007), the court determined that the employee was not entitled to FMLA leave because of the death of his brother, for he had not established a serious medical condition as a result of his brother's death.

Rather, the court found the employee's assertion that he was unable to work incredulous, since he returned to work the following day and was still able to perform his duties before leaving for a dental appointment. Id; see also Barone v. Leukemia Soc'y of Am., 42 F. Supp. 2d 452, 460 (D.N.J. 1998) (citing Sharpe v. MCI Telecomm. Corp., No. 5:97-CV-580-BO(3), 1998 WL 567947, at *5 (E.D.N.C. Aug. 25, 1998) (holding that employee's two-week absence from work following the death of her mother did not qualify as FMLA leave).

In Lange v. Showbiz Pizza Time, Inc., 12 F. Supp. 2d 1150, 1154 (D. Kan. 1998), the court also found that leave rights terminate with a parent's death; however, it explicitly noted that is not to say that the employee cannot plead grief as his or her own serious health condition.

Similarly, in Stubl v. T.A. Systems, Inc., 984 F. Supp. 1075, 1085 (E.D. Mich. 1997), the employee stated that "I am taking this leave of absence based on my personal loss caused by the death of Keith Jr. with regards to my personal health."

The Court reasoned that the notice in Stubl was sufficient because the employee tied his need for leave to his own physical or mental condition as a result of the death of a family member. Id. at 1086. 

Even in a time of grief, the employee must be careful to provide sufficient notice to the employer. In Hoban, the employee called in and asked for leave to take "care of personal needs with my brother's body." 2007 WL 1101217, at *1.

He continued, "We're having a hard time getting his body. I've got to come up with $1,600 to pay off some debts with him. If there is a question or problem, please give me a call." Id. The Court found that the notice failed to reasonably apprise the employer that the leave might be covered by the FMLA due to a "serious health condition." Id. at *6.


Although employers may not incur liability for terminating an employee's FMLA leave in the wake of his or her child's death, employers should still try to be sensitive to the personal tragedies of employees.

Indeed, the employer may want to pursue other options in consultation with the employee, such as a decreased work schedule or reassignment of job duties, before taking the ultimate adverse employment action of termination.

Therefore, even though requiring an employee to return to work following the death of a newborn child may well be lawful, it may not be a smart thing to do as it smacks of impropriety and, as a result, will more likely than not decrease employee morale and confidence.

Such practical considerations are important to remember when cultivating and maintaining a harmonious work environment.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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