In Vetro Fertilization

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Is In Vetro Fertilization protected under FMLA?

DB

In the FMLA quiz in HRhero.com, there is a question about infertility treatments that indicates infertility "probably" limits a major life function (having kids) so it is probably covered. I don't intend for this to be an answer to your question, but just to provide you with another place to look for information. Go to HRhero.com and take the quiz to get the details.

System

Actually, the HRhero.com quiz focuses on the ADA. (You can access the quiz from the home page: [url]http://www.hrhero.com[/url] ) I'm doing some research on the FMLA angle. We'll let you know what we find.

Christy Reeder
Website Managing Editor
[url]www.HRhero.com[/url]

Gar

I'm going out on a limb and express the view that it is not covered for the following reasons:

1. In vetro fertilization is a method or procedure for getting pregnant. I don't see getting pregnant, whether it be via the old fashion method or artificially (in vetro) as being "a serious health condition." My understanding is that "a serious health condition" is an illness, injury, impairment, or physical or mental condition. It seems to me that in vetro fertilization does not pass this test.

2. It's also my understanding that serious health conditions are those in which treatment must be administered because no to do so would likely result in a period of incapacity if left untreated. In vetro doesn't seem to pass muster on this score either.

3. I don't believe the procedure takes more than 3 days but, I could be wrong.

4. I certainly don't believe the congress intended this procedure to be covered by the FMLA.

System

[font size="1" color="#FF0000"]LAST EDITED ON 06-21-01 AT 07:49AM (CST)[/font][p]Well, this is a tough question, and there isn't a whole lot of information on where the courts might stand on the issue of in vitro fertilization and the FMLA. After discussing it with an attorney and looking at the specific language of the FMLA, I would suggest looking at this issue on a case-by-case basis.

HRhero.com's interpretive summary of the FMLA notes: "If an employee is requesting FMLA leave for his or her own serious health condition, a health care provider must determine that the employee is: (a) unable to work at all; or (b) unable to perform any one of the 'essential functions of the position'."

Also, the law says the employee must either be incapacitated or in danger of becoming incapacitated if they don't receive treatment. Below is a paragraph from the law that would apply in this instance:

"Any period of absence to receive multiple treatments (including
any period of recovery therefrom) by a health care provider or by a
provider of health care services under orders of, or on referral by, a
health care provider, either for restorative surgery after an accident
or other injury, or for a condition that would likely result in a period
of incapacity of more than three consecutive calendar days in the
absence of medical intervention or treatment, such as cancer
(chemotherapy, radiation, etc.), severe arthritis (physical therapy),
kidney disease (dialysis)." --29 CFR 825.114

You can read the whole section by going to the link below.
What is a "serious health condition" entitling an employee to FMLA leave?
[url]http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.114.htm[/url]

I don't imagine an employee could prove she is incapacitated (can't perform her job) because she can't become pregnant. Sounds like it would depend on whether the employee's physician would certify her as incapacitated *because of* treatment. I don't know enough about the procedure to venture further guesses. Any medical opinions out there on whether in vitro fertilization could cause an employee to become incapacitated? These are definitely murky waters, but I would suggest closely following the language and purpose of the law on a case-by-case basis.

Christy Reeder
Website Managing Editor
[url]www.HRhero.com[/url]