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ADA: Accommodate fertility treatment, adoption

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in Employment Law,Human Resources

Employees who suffer from an impaired ability to become pregnant are disabled under the ADA. Since childbearing is a major life activity, conditions that interfere with it qualify as disabilities. That means that employees who are infertile or have low fertility may be entitled to time off as a reasonable accommodation.

Granting time off for infertility treatments such as vitro fertilization may be a reasonable accommodation.

Likewise, a woman who has had a hysterectomy and is now seeking to adopt a child may be entitled to time off for adoption meetings, legal proceedings or even travel to another country for an international adoption.

Recent case: Nurse aide Brianne King was frequently absent or late for work. Over the years, she took medical leave for various operations related to endometriosis, which impaired her ability to conceive. Finally, she had a hysterectomy, rendering her infertile. Even after surgery, she continued to come to work late.

Her employer finally gave her the option of resigning or being fired.

She resigned, but then sued, alleging she had been discriminated against because she was infertile.

The court agreed that King was disabled due to her inability to conceive. It said she would have been entitled to time off to adopt or pursue other options to have a child. But since the absences and tardiness that led to her discharge weren’t related to infertility, the court dismissed the case. (King v. Aultman Health Foundation, No. 2009-CA-00116, Court of Appeals of Ohio, 2009)

Final note: The employer did everything right in this case. It gave King time off for all her medical procedures and didn’t count any of those absences against her. But those occasions when King was late and didn’t tell anyone her tardiness was related to her medical condition were fair game for discipline.

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