In vitro fertilization treatments and the FMLA

For an employee to take time off from work under the federal Family and Medical Leave Act (FMLA), the reason for the absence must be a qualifying one. One qualifying reason is the employee’s own serious health condition. For this, the employee must have an illness, injury, impairment, or physical or mental condition that leaves them unable to work, attend school, or perform other regular daily activities due to the serious health condition, treatment thereof, or recovery therefrom. It must also require inpatient care or continuing treatment by a health care provider. For this, the FMLA defines a serious health condition.

Whether in vitro fertilization treatments fit these definitions will depend on all the facts involved, but usually, they don’t. The FMLA and its regulations make no mention of in vitro fertilization; they don’t include a comprehensive list of conditions that would meet the definition of a serious health condition and, therefore, qualify for FMLA leave.

When it comes to in vitro fertilization (as well as other conditions), employers need to apply the definition of an FMLA serious health condition against the information obtained in a certification (or other source).

Often, courts help provide insight, and a court addressed in vitro fertilization back in 2009. It indicated that an employee’s absences for IVF treatment were not protected by the FMLA because she was not incapacitated for more than three consecutive calendar days, as the condition fell under the “incapacity and treatment” part of the definition. The court did what employers are to do: It applied the serious health condition definition and compared it to the information from a certification.