Time off for fertility treatment

Stephen Turner
Member - 9 posts

I don't have an answer for you but here is my train of thought.

I assume that you are talking about a woman, though it could apply to men, I wouldn't have thought that the requirement for time off would be as high. It wouldn't fall under the maternity or expectant mothers duties, as she isn't yet pregnant, not would it be covered by sick pay as it is 'elective'? a treatment that has been chosen. Could it be argued that infertility is a disability? possibly but not in terms of work.

This leaves a leave of absence, with you fairly free to determine the terms.

Of course it could go pear shaped, if a woman was dismissed because they expressed a desire to become pregnant then you could be open to a sexual discrimination case. How much this would apply if you decided not to pay her for time off for infertility treatment I don't know. Could there also be an oppourtunity for you to negotiate leave in return for a reduction in maternity leave? possibly not.

The best course would probably be to openly discuss and document the request, and come to an agreement that works for both of you.

Like I say, I don't have the answers (IANAL) but it's interesting to think about.

sturner at lasius dot com

Emma Bell
Member - 7 posts

Thank you for your question.

There is no legal obligation to give time off. If you do agree to allow the employee time off, you may at the outset want to agree a specific amount of time off. Perhaps you may allow some paid absences from work for appointments and agree that she uses her holiday entitlement for some of the appointments.

As the employer you should speak to the woman concerned and find out exactly what the requirements are likely to be and take into account any previous approach cases if there has been a similar situation in the past. You should also take into account and any policies you may have in place. You should be consistent in your handling of the situation and also be aware that you may be setting a precedent for the future.

I have assumed that this is a female employee. If the employee is a male and you have previously allowed females time off, to treat the male employee differently and less favourably, there is a risk he may bring a claim of sex discrimination.

Anonymous

I think you also need to be discreet in these enlightened times. Time off for making babies would be a very popular request in my office!

Anonymous

Further to you glib comment regarding 'time off for making babies', Tim...

Here's hoping you never have to endure the physical and emotional strain and all too often crushing disappointment that fertility treatment entails. Having seen several friends and family go through this, one can only assume from your comment that you are lucky enough not to have either witnessed or experienced this yourself.

Anonymous

Tim discretion I suggest is prerequisite on a personal matter such as this, but you raise and interesting point.

Sue I have close experience of this issue and can state that all is not doom and gloom, a sense of humour will often help even if it is gallows humour.

The matter for the manager must encapsulate both the feelings of the individual for whome this matter may be of the greatest importance and also any precedence it may set. At what point and for what particular fertility treatment would you consider giving consideration for leave of any sort, natrual fertilisation is just as real a treatment if you are desperate for a child, where would it stop? Like so many other issues which have no legeslative requirement, I would suggest you value all of your staff and treat them as you would wish to be treated under the same circumstances. Training given by my mum not at an expensive management seminar!

Anonymous

Surely this is simply a case of annual leave? Deciding to defy what nature has intended for you by having elective fertility treatment is, essentially, a case analagous (from a leave perspective) with cosmetic surgery or, broadening the scope a little, a personal development course. That isn't a moral comparison, merely a pragmatic one.

In the latter two examples I can see little justification for these being anything other than things to be done on an employee's own time. If the treatment had been prescribed (as cosmetic surgery might) for psychiatric reasons then I can see justification in terms of sick leave, but beyond that I'm at a loss to see why a request for time off for fertility treatment should be treated in any way other than as a request for (presumably unpaid) time off for any other purpose.

If the employee has used up his/her annual leave for other purposes and then chooses to request additional time for fertility treatment then my first question would be directly related to how they planned their life and set their personal priorities. In my view it is certainly unreasonable, and shows very little respect for co-workers, to proceed in that manner, yet many do.

Tim's point is a good one, in the sense of the difficulty of adequately defining in policy terms "fertility treatment." Having seen all too many pseudo-compassionate leave scenarios result in widespread loss of morale amongst other staff who have chosen to work hard and view life in a rather more pragmatic fashion, I have to say I can't see that allowing this one can be particularly helpful. And, yes, whilst I'm sure that the original poster would treat her employee's request confidentiality, I have little faith that the employee would (ultimately) do likewise, so the matter of morale should be very much to the fore in consideration of this issue.

And, no, I'm not neolithic, just deeply pragmatic.

Anonymous

As an employee without children (through choice), would I resent/have my morale lowered by a childless colleague being given compassionate/sick leave to undergo fertility treatment ? of course not. As previously expressed, each case should be viewed and treated on its own merit, with discretion by both parties. As for someone effectively gloating to colleagues about being given time off for fertility treatment ? I fail to see why someone would want to gloat about such a personal situation. If I worked for SD and had unsuccessful fertility treatment (be it during annual/compassionate/unpaid or sick leave) I would be sorely tempted to get myself medically certified ?depressed? and go on sick leave for weeks so as not to disappoint the ?pragamatic? cynic! Surely just as any employee is obliged not to ?take the mickey? sick/compassionate leave-wise, an employer is obliged to consider the effects such a condition can have on the state of mind of an employee.

Anonymous

If an employee is given a certain amount of paid maternity leave, is the employer obligated to give all future employees in the same situation the same consideration? Does it vary by title (i.e, president) or part ownership or if they are a stockholder?

If the same consideration is not given, are there legal ramifications for that employer?

Anonymous

A subject very close to my heart as I am currently undergoing fertility treatment myself. My employer has stuck steadfastly to the 'legal' position and not allowed any time off. This would be fine if it were not for the other 'family friendly' policies in place, which are very similar to those held in other organisations. These policies, for example, allow for paid time off to attend maternity appointments, and paid time off for parents who are adopting children. In terms of 'lifestyle' choice then isn't this exactly the same, surely, as someone who needs to have fertility treatment?

I found the comment from SD about "defying nature" profoundly offensive. Would SD refuse a blood transfusion or an operation if it was needed? Most medical procedures, from medication to major operations go against "Nature", but that doesn't mean that we don't need them. From a policy point of view, most employers would have to treat anyone who had a genuine health problem with sympathy and allow time to be treated and recover. How is infertility any different?

My advice to the original post is to examine very carefully all of the policies you have in place to allow paid time off for any activity, and make sure that the decision you come to does not appear to go against or contradict the existing arrangements. You need to be wary of ending up with a claim against you on the grounds of sexual discrimination, which I believe has happened in other cases. Be aware of what fertility treatment entails and agree a midpoint, to ensure that your member of staff feels valued and supported.

Additionally, the USDAW website has an excellent page which brings together research on best practice for employers to use in agreeing time off for infertility.

Anonymous

I have read this chain of responses with interest.

I appreciate that this is a delicate issue and to a degree a grey area. Surely it is for companies to carefully consider each individual request and respond accordingly.

I am sadly in the position of undertaking fertility treatment myself. Luckily I have an understanding boss with whom I have a good working relationship. We have found a way to manage this and my work commitments in the shortterm while I undergo treatment.

For anyone without direct experience of infertility I would like to share a little with you in the hope that you will better understand. I have had a high level challenging career, I can speak to a room of hundreds, manage international projects and multi-million pound accounts but my husband and I cannot after 3 years of trying have a baby without the help of the experts.

This is the most challneging experience of my wholeenife.It is mentally, physically, emotionally and finacially draining and soul destroying. It totally dominates your thoughts and controls your life. Just one cycle of treatment of IVF takes 8 weeks during which you are taking as many as 8 drug doses a day. They have numerous side effects. There are 5 key milestones to overcome to even get to egg collection which by the way is done anaesthetic. After all this you have around a 25% chance of success. On average couples need 3 or 4 goes to succeed.

However with all that going on it is possible to keep working for the vast majority of the time, catch up a bit in the evenings, keep smiling and hide it from all your colleagues even when it fails.

Is the odd day off really so much to ask. For those who say it's a lifestyle choice, you miss the depth of emotiona attached to the condition. For those who say to use annual leave remember that we need to escape during our annual leave too for the sake of our sanity and our marriages.

If some of you can at least listen with a more empathetic ear asfter reading this, I am gald and thank you on behalf of all those like me who just long for what so many take for granted.

Megan

Anonymous

We have recently received such a request. Our policy would be to treat this in the same was as any other medical condition whether male or female. During diagnosis of the problem the employee would be entitled to paid leave on receipt of a medical appointment card and relevant correspondence. However, treatment would be considered as absence due to a medical problem and therefore normal sickness absence rules would apply. If the employee requested unpaid leave or annual holiday to cover treatment days this would be permitted.

Anonymous

Having been though IVF myself and unfortunately finding myself in a stressful job,with no support at all. l feel that the work place should give us a chance and spend more time thinking what they would do in the same position.As l found that the people who l needed the support from have children.So what would they do in my situation.When l went to my line manager l found they were more worried about how much time l had of even though l used my annual holiday.Also with appointments l was not allowed enough time to get to appointments and was so stressed as l was late and that was just at the beginining of the treatment. please please could we try and find a solution and get a law in the work place so l can have my holiday for holiday and not for treatment and be able to take time off in those so important weeks of my life.

There are more younger people who take time off for a cold.

Anonymous

This makes interesting reading - such a broad range of views. Some very open minded, yet others so blinkered. My wife and I are currently in the middle of a cycle of IVF treatment. My employer (I am a teacher) has been sympathetic to a fault. I am allowed time to attend appointments with my wife, even if I am not required, medically, to attend. I find this attitude refreshing and feel priveleged to be in such a position.

However, my wife is in a different position. She is a department manager for a well-known supermarket. She has been in the position for around 8 years. She organises difficult to find cover (essential) for her absences and is having to use annual leave entitlements for the non-procedure appointments, or work time in lieu. The response to drugs can be unpredictable, meaning that, in our, case, later stages of treatment have had to be put back a week. This has meant re-shuffling cover (much of which cannot be cancelled - only with goodwill by those involved) and taking further time off. With regard to the psychological effect, drugs can alter mood, and difficulties with taking time off can only add to stress.

The issue of whether treatment is elective is, I think, irrelevant. Comments such as this serve to disadvantage mainly women in the workplace, and could only come from a pragmatist. Parallels could be drawn with many other medical issues, in order to make a point, but really don't need to be. Take it for what it is. Someone wishes to start a family - there is a medical reason why they can't and medical intervention is necessary for pregnancy to occur. I find it hard to see what employers find difficult about that.

Anonymous
Member - 28 posts

My husband and I are in the heartbreaking position of needing IVf to have our own child. I am concerned about how my boss will react to me saying that I might need time off at short notice. I'm not going to name the place online but it is one of the big high stree shops, my boss recently told me to dye my hair because the few greys make it look greasy. Basically I don't trust her not to kmaie things awkward for me during treatment. I'm keeping as much of my holiday entitlement as possible in the hope that time off for appointments will be taken from that. For my last appointment, I was able to swap shifts but that won't work for short notice. IVF is dependant on the womans cycle which does make it slightly easier in a way to plan for. I'm hoping that my clinic will be able to give me dates for scans at the beginning of treatment to give me negotiating time. I do have a friend who will help me fight if it comes to it. He told me that telling me to dye my hair was harassment. i don't know if it was but as I say, since that comment I'm treading very carefully at work.

Anne McAllister
Member - 124 posts

Telling you to dye your hair is appalling.You dont indicate your age here but would she say the same thing to a "mature" employee (such as myself ....I call it silver blonde actually )
Is she going to tell you when and how to give birth as well?
As there does not appear to be any definative legislative advice available would you consider discussing this with a union or perhaps the clinic? Im sure the staff there would be in a good position to advise you probably having been aware of this type of problem in the past?

Anonymous
Member - 28 posts

My age 31!!! Yes, believe me that comment knocked my confidence. Our compoany has uniform allowance whereby we choose clothes from the floor that we would like to wear for uniform, comoany pays 75% and employees pay 25%. I had a green blouse which was approved by senior memebr of staff only for boss to tell me I had to pick something else as the blouse didn't suit me due to me having a bit of a stomach on me. Lets just say my confidence hit the floor. I emailed my friend pronto saying that I'm fat and ugly, meant an interesting conversation after church the next day, yes my pastor is someone I count as being a friend. I'm seeing my friend on Sunday so will ask for his advice on how to word the letter I'm going to put in with my holiday request form for the dates I know I need off. The planned holidays are taking 3 days out of 10/11 days entitlement. Holiday year is 1st April - 31st March. i'm trying to lose the excess off my stomach but won't dye my hair. Am not amemebr of a union so can't go there but believe me if my boss does try to make life awkward for me, I'm confident that my pastor will support me, he did say that if I wanted to make a complaint about the comments about my weight and hair that he'd help me write it. i didn't bother as I had other stuff going on at the same time as well.

Anne McAllister
Member - 124 posts

Try not to get too disheartened. I know its easy to say but this woman does not merit your time and energy. Your friend sounds lovely but you need advice from someone who has knowlege of employment issues. This forum is excellent for getting impartial advice as you have probably seen in other threads.
Hey I wouldnt worry too much about the tummy because (hopefully) you will soon have an outrageously huge " bit of a stomach on you"
Have you considered that this person may actually be jealous of you?
If so be kind to her because she is possibly spiritually unwell ???

Anonymous
Member - 28 posts

My pastor knows employment law well, that's why I'm going to ask him for advice on wording the letter forewarning my boss that I'm going to be having IVF, treatment will hopefully be starting in September. He also has a masters in human rights. The thought has already crossed my mind as to what attitude my boss is going to have if the IVf is succesful. There's a 25% chance of it being succesful and if it is, there's a 40% chance of me being pregnant with twins. Boss is definitely not jealous of me. I have saved and will print off a copy of a leaflet from Infertility Network uk saying what should and shouldn't happen with time off for IVF.

Anonymous
Member - 28 posts

Percentagesd are wrong way round, there's a 40% chance of IVF being succesful and if it is, there's a 25% chance of it being twins. I would actually love to see how my boss handles that one especially as our store doesn't stock maternity cothes, ony the larger ones do (one I work in is medium size). I've written a letter today telling her that I'm having IVf in the autumn and that I hope we can come to a compromise. I've suggested that time off be taken from holiday entitlement. If she gets awkward, then I will take action and might just mention the comments about my weight and grey hair as well as other issues (see tea breaks thread). Not only does my pastor know employment law, he also has a Masters degree in Human Rights.

Anne McAllister
Member - 124 posts

LOL I wondered how grey hair ended up in the tea break thread LOL

Anonymous
Member - 28 posts

Haven't given boss the letter yet, a going to ask my pastor to proof read it and see if he thinks its ok on Sunday.

debbie parrish
Member - 2 posts

Hi I too have had IVF at my last company , they wouldnt allow me to take time off and i had to take annual leave , my senior manager said it was going down as cosmetic treatment , i was livid and left the company soon after , i was hurt and insulted by the comments made .

James Fairchild
Member - 257 posts

Just a thought, but could ECHR articles 8 (Right to Family Life) and 12 (Right to Marry) have a bearing here? The relevant legislation for those not employed by the State is the Human Rights Act 1998. I'm no expert on this sort of thing so I'll leave it to others to read through and give their thoughts back.

Richard Hume
Member - 2 posts

I have a member of staff who is undergoing IVF. She moves around the building with a like something out of 'living dead', shuffling around blankly. She is a cleaner and can't empty waste paper baskets (according to her) nor cn she use chemicals as they make her ill (according to her). I can find no evidence of this on all the websites and even from the information sent from the clinic she is attending ( I had to write to them and ask for it). I think she may be 'swinging the lead' but my hands are tied trying not to cause upset etc. Her colleagues have had enough of her and no I need to take some action. Where can I get REAL information, I can only ever find a couple of lines in an article. Surely there is something moer concrete???

debbie parrish
Member - 2 posts

Hi Richard , im reading your comments with interest , ive had IVF treatment 4 times, ive carried on working while under going injections and all the other treatments such as scans and appointments . Occasionally i have needed to rest and yes i too have probably walked around like a zombie at tmes.
I've tried not too complain too much while having the treatment but until you actually go through this traumatic process your self i dont think your in a position to actually comment on whether this lady is " swinging the lead or not !" its a painful and extremely emotional time. Each person reacts diffrently to treatment and the crazy drugs they give you play havoc with your body.
I too was told not to lift ( im not sure if a waste paper basket comes into this or not ) but again it really depends at what stage her treament is at ,how long has this lady worked for you ? was she like this before her treament started ? How long has she worked at your company ? surely if she's had good appraisals in th past you could put it down to Treatment, i dont know about cemicals effecting her or not but could you not compromise and get some cleaning products that are kinder to the enironment that have low chemicals ? ( just a thought )
Like i said ive had IVF 4 times and each time i have had it its effected me differently each time , what i do know is its painful and its a very distressing time , shame you couldnt be a little more supportive ? all i can say is thank God i dont have collegues like her ! doesnt look like she'll be getting much empathy or undestanding from you lot .

James Fairchild
Member - 257 posts

Debbie, surely Richard is trying to give this lady support by seeking to find out the facts?

Richard, I wonder whether a specialist occupational health assessor would be the person to examine this lady, and the provide you with guidance?

Like others, I would be interested in reading what the law says. As has already been said there are a couple of 'groups' that these ladies (and men?) could be put into:

-the same as people who undergo voluntary cosmetic surgery, or people who get injured doing things like rock climbing/drunken antics

-people with a disability

-equivalent to pregnant ladies

I think we're all agreed that this situation needs more sensitivity than the first option. For the second, a disability is defined as "physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day to day activities" - is getting pregnant a ladies normal day-to-day activity?

Re the final option, it appears that this would centre on whether the lady is defined as a "pregnant woman". On this very website, I found this piece about a lady in the advanced stages of IVF:

http://www.workplacelaw.net/news/display/id/13860

If I could quote a couple of paragraphs from the comment:

"The ECJ ruled that a woman is not a 'pregnant worker' under the Directive before an embryo has been transferred into her uterus... Crucially, however, the ECJ went on to rule that it would, nevertheless, be unlawful direct sex discrimination under the Equal Treatment Directive if a woman were to be dismissed because she is in the later stages of fertility treatment." The case was Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG, a Belgian case referred to the ECJ.

Tony Williams
Member - 19 posts

There are two key issues here. First, the process of IVF is inevitably emotionally traumatic, and a supportive employer will help reduce stress and promote a positive atmosphere at work for all. Second, apart from time attending hospital for the technical process of IVF, the pregnancy should be no different to any other, so there is no medical indication for any further absence from work or adjustment at work other than for the usual pregnancy issues.

If you have any questions, particularly if you feel the employee is 'swinging the lead', I strongly recommend an occupational health opinion or an obstetric specialist opinion. It may be better to negotiate time off 'up front' either as special leave or additional holiday rather than medicalise issues.

A GP is likely to be the patient advocate and may just give whatever sick notes are asked for. I have seen a GP recommend five months sickness absence for IVF with no medical justification five separate times for one individual, and seen management grant it because of fear of litigation, all at full pay at public expense.

Jenny Piggott - Workplace Law Network
Online advisor - 2 posts

Richard,

I can see you are in a difficult position. Unfortunately there is no clear guidance as to how employers should deal with staff undergoing treatment. There is no statutory right to time off for fertility treatment, and the laws that protect pregnant women don't apply to those who are trying to conceive.

I would encourage you to firstly try to address the issue informally, have a chat with the employee to see if there is any way you as an employer can help. It might be that the employee is not aware of the conduct you describe and it could be a result of preoccupation. The discussion might refocus the employee and resolve the issues.

If the above has no effect then you will need to take further action. I assume you do not have a fertility treatment or IVF policy, so you need to tread carefully and find the balance between being a reasonable employer and not allowing employees to ‘swing the lead’. Clearly this employee’s performance is not up to the required standard. I would recommend that you ask for a medical report from the employees GP, or an independent medical adviser, to establish whether there are reasons why the employee cannot carry out the duties you list. If there are reasons, and these are linked to the IVF treatment, you could consider reallocating work for a short period of time while the treatment takes place.

A Fertility treatment is not a 'deemed incapacity' for statutory sick pay (SSP) purposes. However, the treatment can affect people in different ways. An employee may well be ill due to the treatment, for example through depression or stress. If this is the case, it is up to the employer whether or not to accept the incapacity as stated on any medical certificate or form, to consider SSP entitlement.

The problems she is experiencing may centre round particular times in the fertility treatment – so you may wish to suggest that she takes some annual leave around those times and that you will cope with short notice. You may also allow some unpaid leave if necessary.

The main advice here is to communicate clearly with the employee so that there can be a constructive discussion around the problem. You need your work done and she wants her fertility treatment. Both of you have strong desires and these need to be aired and a compromise reached.

Anonymous
Member - 28 posts

Richard, I have to say that your employee may not be swinging the lead, but could be finding it very difficult emotionally. Infertility is heartbreaking, at times I've only been able to cope thanks to support of my fantastic church family especially my pastor. I'm usually avery lively outgoing person but when I'm down I go quiet and yes it may appear if I'm feeling really bad as though I'm the living dead. As for the not lifting waste paper baskets, I'm not sure on that one, if your employee has had the embryo/s put back then she may well have been advised to avoid the things that need to be avoided during pregnancy. I assume you're talking about an average size basket which wouldn't or shouldn't have anything heavy in it. The chemicals one is trickier. i do know that pregnant women are advised to avoid even some household cleaning products if possible but if she needs to use them, then to use gloves and ensure the area is well ventilated by opening a window.
Situation with me is that my pastor hasn't got back to me yet, he's away at the moment and was very busy before he went but he did look over it. My appraisal is on Wednesday and it's not the store manager doing it. I'm going to raise the issue of comments about my hair and weight along with a few others which have arisen.

Richard Hume
Member - 2 posts

Hi Guys. Richard Hume here.... Thanks for your comments. I am trying to be supportive despite what Debbie accuses me of as are her colleagues. BUT, the point I am trying to make is that I have no way of checking her story. I have discussed the issues with her and got her to sign a GP consent form, however the clinic refuses to give ANY information. I wrote to them asking that they must have some leaflets or giv their clients some kind of information pack. They reluctantly sent me something which doesn't support any of what my employee is saying, leading me to think that she is perhaps making mountains out of molehills. In the meantime, her job isn't getting done, my customers are complaining and her colleagues are getting tired of following her around. Remember, she is a cleaner who cannot bend, cannot empty bins and can't use chemicals. She refuses to use holiday entitlement for rest days, she won't change her hours, and when under treatment lets me down with hardly no notice. I am quickly coming to the conclusion she is unfit/unable to do the job. Two of you have suggested an occupational therapist and this may be the way forward. I am due to have another informal chat with her and to say that I am not prepared to carry on like this. We must agree a way of moving forward that suits us both which may mean making some tough decisions. I really do want to help her, but have no supportive info or legislation making it extreeeeeemely frustrating
Thanks to James and Jenny. Very helpful!!

Tony Williams
Member - 19 posts

Richard

You need advice from occupational health not occupational therapy; they are completely different specialities. It sounds as if you need good advice as soon as possible, before the situation gets entrenched and difficult to manage.

James Fairchild
Member - 257 posts

Richard,

Always bear in mind that when you write to a GP (even if you offer to settle their invoice) you will receive one-sided advice, advice from a general practitioner whose priorities are getting his patient back to health, and respecting his duty of care towards that patient.

An occupational health advisor works for you, and gives you an answer (which if necessary ignores the patient's own thoughts) of how this conditon/illness/disability can best be managed from YOUR BUSINESS PERSPECTIVE.

You'll find that the OHA will often say that the person is fit to come back to work, when the GP has said they need another 6 months off.