Do infertility treatments qualify for employee protection under the FMLA? If an employee needs to take time off, arrive late for work or refuse to go on business trips because of treatments, must an employer accept that? How much notice is required?

Answer:

Maybe. The FMLA provides leave for an employee's own "serious health condition" that makes the employee unable to perform one or more of the essential functions of his/her job. Under the FMLA regulations, continuing treatment by a health-care provider following a period of incapacity of three or more consecutive days, and any subsequent, related regimen of treatment under the care of a health-care provider, satisfies the definition of a "serious health condition." 29 C.F.R. 825.114 (a).

Thus, if the infertility treatment (and the employee's reaction thereto) causes three or more consecutive days of incapacity, then that period of time, as well as other lateness or absence from work occasioned by continuing infertility treatment, will be covered by the FMLA.

To the extent that infertility treatment falls within this category of covered leave, the employer would be entitled to at least 30 days' advance notice (less if the need for leave was unforeseeable) of the intended leave. To address scheduling conflicts, the employee must also consult with the employer when planning medical treatment and make a reasonable effort to schedule the leave so as not to disrupt unduly the employer's operations, subject to the approval of the health-care provider. 29 CFR 825.302. This would include, for example, scheduling infertility treatment so as not to conflict with business trips or other important meetings or deadlines.