Family Medical Leave Act for Employees Treated for Infertility I KingSpry

Infertility and the Law: What You Should Know About the Family Medical Leave Act

Photo of Dorota Gasienica-Kozak

Posted on June 18th, 2018
by Dorota Gasienica-Kozak

The Family Medical Leave Act (FMLA) provides 12 weeks of unpaid job-protected leave to qualified, eligible employees who, because of a serious health condition, may find themselves unable to perform one or more of their essential job functions temporarily.

While infertility is not a considered a “serious health condition” in and of itself,  under  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.”

Thus, if the infertility treatment 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.

Under the FMLA, your employer is 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 employee 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. This would include, for example, scheduling infertility treatment so as not to conflict with business trips or other important meetings or deadlines.

Here would be the process:

  • Step 1:  Employee should make a request for FMLA leave.
  • Step 2: The employer should perform an eligibility determination (did employee work at least 1250 hours in the last 12-month period? Does employee report to a worksite with 50 or more employees within 75-mile radius?)
  • Step 3: If employee is eligible, employer should give employee 15 calendar days to provide medical verification of a serious health condition.
  • Step 4: Employer has five business days to designate leave as FMLA qualifying from the day that employee gives the employer the medical documentation.


If you are dealing with legal issues as a result of infertility or infertility treatments, you should speak to an attorney experienced in the knowledge of Assisted Reproductive Technology Law.


heARTbeat is a publication of KingSpry’s Adoption Law and Assisted Reproductive Technology Law Practice Group. It is meant to be informational and does not constitute legal advice.