The Mailbag.

• Author: Davenport, Anniken

Paid time off, and then 12 weeks of unpaid leave?

QDid I understand correctly that an employer can let an employee take paid time off and then use the 12-week unpaid leave in addition?

AEmployers can require that employees take paid leave concurrently with unpaid FMLA leave if they have paid leave available. A DOL opinion letter suggests that employers may be required to run paid leave concurrently with FMLA. Typically, employers prefer to run FMLA leave concurrently with paid leave so that the employee does not take unpaid leave after using up all paid leave first. See DOL.gov for more information.

Does the FMLA cover travel for IVF/fertility treatments?

QThe town that I'm in doesn't have many fertility clinics. The closest ones are about 45 minutes away. Is travel for IVF/fertility treatments covered by the FMLA? One employee has several appointments coming up, but is that a "serious health condition"? These employees are missing half to full days for these appointments due to travel time. Does the FMLA have any regulations regarding travel? Where I'm located, there are several specialists that are not close by. Is there a difference if the employee chooses to go to a doctor who isn't local versus going somewhere not local?

AThe answer, unfortunately, is "it depends." Under the FMLA, a serious health condition is "an illness, injury, impairment or physical or mental condition that involves inpatient care in a hospital, hospice or residential medical care facility or continuing treatment by a health care provider." (Emphasis added). Fertility treatments are generally prescribed by a health-care provider and of a continuing nature. Thus, testing, surgery, drug treatments and so on would meet the definition if they involve a health-care provider. FMLA leave may be taken in increments as detailed here: www.dol.gov/agencies/whd/fact-sheets/28i-fmla-leave-calculation.

The related question of travel time is one that DOL has not answered definitively, and that federal courts have not addressed. However, it would be illogical to require that an employee's travel to treatment would not be included in FMLA leave when the appointment is for an FMLA-covered condition. There are also no FMLA rules that require that workers choose a doctor close by over a doctor further away from their home or worksite.

Finally, under the ADA, infertility may qualify as a disability. That's because reproduction is a major life activity and the inability or difficulty in...