Supporting Employees Through Infertility: Legal Obligations and Accommodations

Quick Hits

• Several federal laws may require businesses to provide reasonable accommodations for employees seeking infertility treatments.
• A growing number of states have passed laws requiring health plans to cover infertility diagnosis and treatments.
• Fertility medications and procedures are not always covered by health insurance.

Leave Benefits

The Family and Medical Leave Act (FMLA) may apply to fertility treatments if they are needed to address a serious health condition requiring ongoing care from a physician. For example, an egg retrieval, in vitro fertilization, or procedure to treat endometriosis or uterine fibroids could be a serious health condition under the FMLA.

The FMLA entitles workers to twelve weeks of unpaid leave to care for their own serious illness, care for a family member’s serious illness, or bond with a child. Twelve states and Washington, D.C., have paid family and medical leave programs. The amount of leave and wage replacement benefits varies by state.

If a miscarriage or stillbirth happens, an employee may be entitled to take FMLA leave to obtain medical care or recover physically. Some employers allow employees to take bereavement leave after a miscarriage or stillbirth, even when it is not legally required.

Some states have new laws granting time off for reproductive losses. For example, California requires employers to provide five days of paid leave for employees after a miscarriage, stillbirth, failed surrogacy, failed adoption, or unsuccessful assisted reproduction procedure. The Illinois Family Bereavement Leave Act provides eligible employees up to two weeks of unpaid leave to grieve, make arrangements, or attend services for a stillbirth, miscarriage, unsuccessful reproductive procedure, failed adoption or surrogacy agreement, or diagnosis that negatively impacts pregnancy or fertility. New Jersey has a pending bill that would amend the New Jersey Family Leave Act to include “the death of a child or miscarriage or stillbirth of a child” and “time to grieve” in the definition of job-protected “family leave.”

Reasonable Accommodations

The Pregnant Workers Fairness Act (PWFA) requires employers with fifteen or more employees to provide reasonable accommodations for limitations related to pregnancy, childbirth, and related medical conditions, even if they do not fall within the definition of a “disability” under applicable statutes. Such conditions may include infertility, gestational diabetes, postpartum depression, lactation, and miscarriage. Typical accommodations under the PWFA include time off requested by the employee, remote work, light duty assignments, permission to sit, and permission to drink water at the workstation.

In addition, the Americans with Disabilities Act (ADA) applies to employers with fifteen or more employees and typically covers employees experiencing infertility because reproduction is considered a major life activity under the ADA. In addition, employees seeking fertility treatments may have related medical conditions that also qualify as disabilities under the ADA.

For employees with a known disability, employers are required to engage in an interactive process to determine the employee’s limitations and agree on reasonable accommodations if needed. For individuals undergoing fertility treatments, reasonable accommodations may include remote work, flexible schedules, time off to attend medical appointments, and permission to avoid heavy lifting.

Confidentiality

The FMLA, PWFA, and ADA require employers to keep employees’ medical information confidential, and such information may not be maintained in personnel files.

Health Insurance Coverage

Fertility treatments can be very expensive. Even when accommodations and leave benefits are available, that does not mean an employer’s health plan will cover the cost of fertility treatments. California, Colorado, Connecticut, Delaware, Washington, D.C., Illinois, Maryland, Massachusetts, Maine, New Hampshire, New Jersey, New York, Rhode Island, and Utah have laws that require certain health plans to cover in vitro fertilization or other fertility treatments. Twenty-one states have laws that require health plans to cover fertility preservation, such as egg freezing or sperm freezing, when necessary because of a medical intervention like surgery, chemotherapy, or radiation. In some cases, religious employers may be exempt from state mandates to cover fertility treatments.

Previously, infertility was defined by unsuccessful attempts to conceive through unprotected heterosexual intercourse. Thus, for some LGBTQ+ employees, a clinical infertility diagnosis was not available, and infertility treatments sometimes were not covered for that reason. In 2023, the American Society for Reproductive Medicine changed the definition of infertility to include the need for medical intervention, such as donor eggs or donor sperm, to attain pregnancy. That led to more health plans covering infertility treatments for LGBTQ+ patients.

Regardless of coverage, LGBTQ+ workers still may be entitled to take time off under the PWFA and the FMLA. In addition, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination, harassment, and retaliation based on infertility, pregnancy, and childbirth. It applies equally to heterosexual and LGBTQ+ employees.

Next Steps

Employers may wish to review their written policies and train managers to comply with all local, state, and federal laws mandating time off, accommodations, and nondiscrimination. Many states have laws similar to the protections under the FMLA, ADA, and PWFA.

Employers may wish to carefully document the legitimate business reasons for denying any accommodation request related to fertility treatments, pregnancy, or childbirth.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will post updates on the Employee Benefits and Executive Compensation, Employment Law, Healthcare, and Leaves of Absence blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on state family and medical leave laws and bereavement leave laws, as well as pregnancy accommodation laws. Premium-level subscribers have access to comprehensive law summaries and updated policies, as well as detailed step-by-step guidance and templates for handling Pregnancy Accommodation Requests. Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.

Justine L. Abrams is a shareholder in Ogletree Deakins’ Morristown office.

Sheri L. Giger is a shareholder in Ogletree Deakins’ Pittsburgh office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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