Does FMLA apply to absences due to infertility?

It could, depending upon the circumstances. As with all medical absences, if the individual case meets the criteria of a serious health condition under FMLA Regulation 825.113, then it will be FMLA-qualifying. For instance, having tests done to determine the cause of infertility would be covered as a test to determine whether an individual has a serious health condition. Some examples include blood hormone analysis, semen analysis or post-coital tests, if they are necessary to diagnose a potential serious health condition. Missing a portion of a day to have an infertility treatment done may not meet the definition, as that alone would not likely meet the definition of a serious health condition.

Surgeries to treat underlying medical conditions such as endometriosis or impaired sperm flow, to remove tumors or cysts, or to repair damaged reproductive organs could be covered by the FMLA, as could certain prolonged bed rest needed after treatment or serious conditions that develop due to treatment requiring time off from work. Simple insemination procedures are unlikely to be considered a serious health condition unless a complication arises that requires prolonged hospitalization or bed rest. Additionally, treatment of depression brought on by infertility can qualify for FMLA leave if the employee receives continuing treatment by a health care provider and the depression makes the employee unable to work.

Employers must review the specific circumstances related to infertility and specific reasons the time off is needed to determine whether it is FMLA-qualifying. To make a certain determination that an employee's medical condition meets the definition of a serious health condition, an employer should require, as part of its FMLA policy, that the employee submit a medical certification form completed by his or her health care provider. FMLA Regulations 825.305 and 825.306 provide information on medical certification. The DOL medical certification form for an employee's serious condition is found here.