Legal Protections for Working Women Using IVF
Tuesday, August 12th, 2008by Stacey
Working women who miss work for infertility treatments are now one step closer to having legal protection from job loss under laws that guard against pregnancy bias in the workplace. According to this article in the Wall Street Journal, a federal appeals court has sided in favor of a woman’s right to sue if she loses her job for missing work due to in vitro fertilization.
In the first decision of its kind at the federal appeals-court level, a three-judge panel in Chicago found women who need time off work for infertility treatment may invoke the Pregnancy Discrimination Act as potential protection against adverse action. The ruling came in a case involving Cheryl Hall, a secretary who was laid off after taking time off for in vitro fertilization, then asking for more. Without ruling on the merits of her case, the court last month set a precedent by giving Ms. Hall a green light to sue her former employer for pregnancy-related bias.
I didn’t know this before I read the article, but the erratic nature of IVF can wreak havoc on the schedule of a working woman.
Some procedures require women to report to a clinic several days each month for blood tests or sonograms. Retrieving eggs from a woman’s uterus is usually done with a general anesthetic, requiring recovery time. Some doctors order bed rest after embryos are transferred to the uterus. Women who have long commutes to work or a clinic, as Ms. Hall did, may need extended time off.
The article says Ms. Hall’s physician ordered her to stay in bed for several days after an embryo transfer in 2003; she took about 20 days off, court papers show. The procedure failed and she was approved for a second leave to try again; “my boss knew everything that was going on with me,” Ms. Hall says in an interview. But her supervisors singled her out for layoff before the second leave, citing absenteeism for infertility treatments, court papers show.
Courts in other cases have held that because both men and women experience infertility, sex-bias protections don’t apply. In this case, the court held that because only women undergo time-consuming in vitro fertilization, they may be protected by sex-bias law. Treatment for men usually takes less time.
The ruling suggests women will have to worry less about the “repercussions of taking time off for IVF,” says Eugene Hollander, Ms. Hall’s attorney. While the decision applies only in Indiana, Illinois and Wisconsin, it could influence other courts or, if a conflict arises, trigger a Supreme Court petition, the article says.
The ruling expands a trend toward recognizing infertility as a medical problem; 13 states have laws mandating insurance plans to pay for in vitro fertilization, says the Pacific Research Institute, a think tank. Also, more employees are seeking time off for treatment under the federal Family and Medical Leave Act; this law, which entitles covered workers to up to 12 weeks’ unpaid time off, may apply in some cases if a doctor certifies the treatment is for a serious health condition.
I wonder whether this would have implications for health insurance coverage of these procedures. Does health insurance typically cover this now? I seem to remember about five years ago there was push back from the insurance companies over whether or not infertility was a medical condition.
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