Need advice quick - Infertility - serious medical condition??

HS · September 2002

An employee has approached HR in relation to needing "time off" for doctor's appointments and testing to be done for both herself and her husband. The diagnosis is infertility. I think I remember reading somewhere that infertility is now being viewed as a serious health condiditon by the FMLA. Can anyone out there tell me if this is correct?? I'm looking for facts or cases dealing with this and can't seem to find anything. Wanted to know if it should be covered as intermittent leave under the FMLA. (Both she and her husband work at the company if that makes a difference)

Thanks in advance for your help.

Terry · September 2002

I don't believe there is any current case law supporting infertility for FMLA, but I think it may fall under ADA. Anyway, allowing some time off using PTO should be ok if it works for your business needs. You can also suggest that they try and schedule appointments outside of business hours. This may not work since many specialists sometimes have very limited hours or appointments.

HS · September 2002

Thank you for your response. Now that I think about it, I believe what I heard was about the ADA. So if it falls under ADA, can a department manager "write-up" either individual for excessive abscences? Or if they're using PTO time will it matter??

Thanks again

Don D · September 2002

If the absences fall within your PTO guidelines, it would be foolish for a manager to 'write up' the employee. If it's an ADA accommodation you've worked through and granted, the manager would be more than foolish to 'write up' the employee.

Margaret Morford · September 2002

Why is this ADA? While the ability to reproduce may be a major life function (Don D do not even go there!), I think in view of the latest ADA cases, it may not be a disability. What about the attorneys out there?

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

System · September 2002

I looked in our HR Executive Special Report called "FMLA Leave: A Walk Through the Legal Labyrinth," page 23. It says to go through the same analysis as any other health condition: surgery to treat infertility would be FMLA, a few doctor's appointment, no.

If you subscribe to our Employment Law Letter in your state, it's in the subscribers' area of this website, no charge.
[url]www.hrhero.com/statenews.shtml[/url]

James Sokolowski
Senior Editor
M. Lee Smith Publishers

Rockie · September 2002

I have not been able to find anything as far as FMLA covering infertiity testing. It seems I read something about the treatment of infertiity or someone attempting to use FMLA for this, but I can't find that it would be covered. Without getting graphic, as far as the husband goes, it is a simple, one-time test to find out if the infertiity is in his court, so I couldn't see why he would need FMLA for his "testing". As far as females, I think it is more of a trial and error type issue.

As I said, I haven't been able to find out anything about this, but I am going to a two day legal update tomorrow (two days in the company of lawyers) and I will get a "reading" for us on this. Hopefully, report back on Friday to you guys.

Rockie · September 2002

I have just spent two days in the company of attorneys who are specialists in employment law (so they say). In the case of infertility treatments, etc, this is considered a "gray area" which means it has not been tested in the courts as of yet.

To err on the side of caution, I would advise the employee to go through the FMLA channels, the doctors' certification, etc. and I would just consider it FMLA leave. If it's just a few doctors' visits, it probably wouldn't amount to much of an issue, but if it's a serious course of treatment, I believe a court would ultimately consider it FMLA.

The attorneys stated this would not qualify for any type of ADA leave.

Whenever someone refers to something as a gray area, I consider that "ripe for litigation".

Hope this helps.

HS · September 2002

Thank-you all so much...I figured that's how I would have to proceed, but wanted all your expert advice.

Thanks again!

SDDCHR · September 2002

Take the HR I.Q. quiz on the home page. Pay close attention to #4.

HR_Gal_WI · October 2002

Are there any cases out there that are currently being decided on this?? We've had similar situations of a woman in our company needing time off for the same thing. I'm sure it's a complicated subject and it'll be ongoing for a long time.

awilliams · October 2002

When I wrote the FMLA Special Report I intended to do a whole section on infertility and the FMLA. However, I was surprised to learn that there just isn't enough out there yet to fill up a whole section. I did find a terrific website, however, that I mention in my report. For those of you who are interested in finding out some more about this issue, check out: [url]www.nationalpartnership.org/workandfamily/fmlaleave/qu_supplement.htm[/url].

I will also double-check to see if any cases have been decided that might offer some guidance.

Anne Williams

HS · October 2002

>I will also double-check to see if any cases have been decided that might offer some guidance.

Anne...thank-you so much! That would be terrific! This is certainly a new and touchy subject that needs to be addressed so us folks in HR can handle them ethically, legally and with the compassion that makes us special!

Need advice quick - Infertility - serious medical condition??

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