Infertility Treatment and FMLA

Absences for infertility treatment meeting the criteria of the definition of a serious medical condition under the Family and Medical Leave Act (FMLA) regulations may be counted towards an employee’s family and medical leave (FML) entitlement.

A serious health condition is defined by the U.S. Department of Labor Wage and Hour Division in Fact Sheet #28G as one in which a healthcare provider determines the employee is unable to work at all or is unable to perform any one of the essential functions of their position, including absences from work to receive medical treatment for a serious medical condition.

Qualifying Examples

 Some examples of employee absences for infertility treatment that would qualify as FML include:

• Having tests completed to determine the cause of infertility (e.g., blood hormone analysis, semen analysis, post-coital tests).
• Undergoing surgeries to treat infertility conditions such as endometriosis or impaired sperm flow, to remove tumors or cysts, or to repair damaged reproductive organs if prolonged bed rest is needed after treatment.
• Receiving continuing treatment for depression brought on by infertility or if the depression causes the employee to not be able to work.

Non-qualifying Examples

 Examples of employee absences for infertility treatment that would not qualify as FML include:

• Missing a portion of a day for infertility treatments as they alone would not meet the definition of a serious health condition.
• Simple insemination procedures unless a complication arises that requires prolonged hospitalization or bed rest.

The specific circumstances related to infertility treatments and the specific reasons the time off is needed must be carefully considered by employers. Reviewing the required medical certification form from the health care provider will aid in making a good decision when determining if the absences qualify as FML.

Additional FML information, including model forms, is available in the HR Services Resource Library (member login required).