Q: One of our employees talks constantly about her maternal aspirations. Unfortunately, she seems to be having difficulty becoming pregnant but vows to persist, whether by traditional means, in vitro fertilization, adoption, or surrogacy. She has even brought in research literature on artificial wombs, in spite of the fact that they’re not yet available. Although she is currently doing her job well, we fear all this will lead to a lot of time off. What are our obligations in accommodating her in these different paths to motherhood?
A: First, as long as your employee is doing her job, contain any frustration you may have regarding her talk and your fear about future absences.
The EEOC in 2015 issued enforcement guidance on pregnancy discrimination, which clearly states that the law prohibits discrimination based on a woman’s intention or capacity to become pregnant.
As one court ruled, “Potential pregnancy…is a medical condition that is sex-related because only women can become pregnant.”
State and federal law forbid discrimination based on pregnancy (potential or actual), childbirth, or related medical conditions, requiring employers to provide the same accommodations owed to others who face limitations in ability to work due to reasons unrelated to pregnancy.
In the most common situation, you must provide job-protected time off to your employee when she is medically incapacitated due to pregnancy or recovering from childbirth.
This is the case whether you have 50-plus employees (FMLA covered) or fewer than 50 employees (no FMLA coverage).
In vitro fertilization as a path to motherhood has uncertain status under the FMLA. Some treating physicians may prescribe three or more days of limited activity or no work during initial or successive treatments, thereby qualifying IVF as a “serious health condition” for FMLA purposes.
Of course, any subsequent periods of incapacity during an IVF-induced pregnancy would be FMLA qualifying. But even if the initial IVF treatment does not trigger FMLA protections as some courts have ruled, other legal theories may be a basis for requiring you to provide time off for the treatments.
Employers have tried to cast IVF as a gender-neutral treatment for infertility, arguing that both men and women are equally affected by infertility.
The courts, however, have rejected that strategy, arguing that because only women undergo IVF as a medical procedure, denial of time off for IVF treatment constitutes illegal gender discrimination.
Adoptive parents have clearly established rights to FMLA job-protected leave before and after the actual adoption, including time off to attend counseling sessions, appear in court, consult with attorneys or agencies representing either the adoptive or birth parent, meet with doctors, submit to a physical examination, or even travel to another country to complete an adoption.
In addition to pre-adoption time off, post-adoption FMLA leave for a continuous period for bonding with the newly adopted child up to a total of 12 weeks is also required. (Intermittent time off for bonding is available only at the employer’s discretion.)
Having a baby through a surrogate is not explicitly addressed in the FMLA or any other workplace laws.
However, surrogacy involves some events common to adoption and IVF, including legal or social services counseling, travel, medical appointments to monitor mother and fetal health, attending the birth, and bonding with the newborn.
Those matters seem to fall within the same type of FMLA-protected leave that applies in adoption cases and therefore should be available when an employee is seeking motherhood via surrogacy.
After all, the FMLA explicitly states that an employee may take time off for “the birth of a child and to care for the newborn child” in the first year after birth.
The only difference with surrogacy is that the mother hasn’t physically carried the child; in all other respects, legally, genetically, and emotionally, the newborn belongs to the non-birth mother.
Finally, as for motherhood through use of an artificial womb, let’s wait for the reality to hit the market; available options for getting pregnant already pose enough complications and uncertainty for employers when it comes to managing leave.