Fertility treatment time off + FMLA

[EAP]

What is the name of your state?What is the name of your state? VA
Company: Private sector with 75+ employees

In few months I'm scheduled to undergo a fertility treatment and have been saving up my time off. We get annual, sick leave and personal days. However, our HR Dept. says I'm not entitled to take any medical leave since my treatment is considered elective (unnecessary), just like for example going for a lipo. I have been reading FMLA and even if I'm not entitled to any time under FMLA i keep thinking that at least sick leave would make sense. One colleague just got back to work after adopting a child and she was able to use FMLA (not sure how that is not "elective").
Now, HR is saying I will not be able to use my sick leave either, because that type of leave is reserved for "serious medical issues" - which (according to them) fertility treatment is not. Of course, I will not have enough of annual leave to cover all the days I need to take and it appears that they are thinking of firing me. Our handbook also offers family leave, but I was told I don't fall into that group either, since there is no child yet.
Can anyone give me any advice or at least tell me if I should contact a lawyer?
PS - VA Department of Labor and Industry said they don't "deal with these issues" (12.03.04)

 

[rmet4nzkx]

Check with the US department of Labor.
There is some confusion re the interpretation of the FMLA language which can allow for infertility treatment, use the term "infertility" rather than "fertility", FMLA specifically allows for time off re adoption, that is why your co worker was allowed time off. Remember FMLA is basically unpaid time off while you might qualify for FMLA you may not qualify for your employers "Paid" sick leave, but they may not be able to qualify how you use your vacation or personal day's off, so you might have to use them first and if you are in the hospital overnight then might qualify for FMLA. Remember that if you use a lot of the FMLA time for infertility treatments you might run out of time for pregnancy leave.

http://infertility.about.com/cs/infertilitylaw/a/FMLA_1.htm
FMLA Rights Eligible employees may take up to 12 weeks of leave each year for any of the following reasons:

-the birth of a child or placement of a child with the employee for adoption or foster care;

-the care of spouse, child or parent of the employee who has a serious health condition; or

-the serious health condition of the employee that makes the employee unable to perform the essential functions of his or her position.

Defining "Serious Health Condition"

Critical to the question of whether an individual undergoing infertility treatment is protected by the FMLA is the definition of “serious health condition.” Serious health condition means an illness, injury, impairment, or physical or mental condition that involves:

-any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or

-a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or

- any period of incapacity due to pregnancy, or for prenatal care; or

-any period of incapacity (or treatment therefore) due to a chronic serious health condition such as asthma, diabetes, epilepsy; or

-a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective such as Alzheimer's, stroke, terminal diseases; or,

-any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated such as chemotherapy, physical therapy, dialysis.

 

[Beth3]

I do know that infertility is considered a disability under the ADA, therefore an employer is required to consider possible reasonable accommodations for an employee undergoing infertility treatments. Allowing an employee to use vacation, sick time and personal leave time as necessary would certainly be rasonable accommodations.

I can't say for certain but I also strongly suspect that extending FMLA for an employee undergoing infertility treatments would also be required. As Patty suggested, you can contact the federal DOL to discuss that. 202-693-4650.

After you speak with them, I suggest you return to HR, share with them what the DOL told you (assuming they state the employer is required to extend FMLA) and the ADA issue and then give them a few days to look into this themselves. They'll want to do their own research and verify what you told them.

If they still refuse to extend any leave time and/or allow you to use any paid time off benefits they provide, you can contact the EEOC to file a complaint on the ADA violation and the DOL regarding any FMLA violation.