Supporting employees with time off for fertility treatment

More and more employers are introducing paid fertility leave and a fertility leave policy to their workforce. For employers considering doing something similar, we explain the requirements for fertility leave and points to ponder when preparing a policy.

Are employers required to provide time off for fertility treatment?

There is no statutory right to provide staff with time off (paid or otherwise) for fertility or related treatment. It is also unlikely that such treatment would be covered by statutory sick leave and pay, although employers may be able to exercise their discretion to allow company sick leave and pay to be used. 

This is because in many circumstances, fertility treatment will be bitty, requiring the individual involved to just need a few hours or a day or two at a time. This itself is likely to cause issues with claiming statutory sick pay where there is a 3-day waiting period before any payments might be made. 

There is also the issue of whether it can be said that the individual is genuinely incapacitated to be eligible to leave and pay under the statutory sick pay rules. Some employees may be capable of work although it should not be assumed that this will always be the case – the treatment itself can cause adverse effects as well as severely impact mental health which may well result in an employee being genuinely incapacitated.

The alternative, which many employees have turned to without any other option, is to use holiday to cover any absence for treatment. Holiday is intended to provide respite for employees and workers. There is a question whether taking time off for fertility treatment could genuinely be considered as holiday and therefore whether it is appropriate for colleagues to be asked to use holiday in this way.

Should employers provide the time off?

In view of this, many employers are choosing to offer staff time off for fertility treatment. Indeed, employers may wish to think twice before refusing time off for fertility treatment as women who are refused the time off may be able to bring a claim for sex discrimination in the employment tribunal. Aside from litigation, refusing time off is also likely to create poor relations with affected employees which could impact turnover.

Should that time off be paid?

Paid time off is clearly beneficial for the employee. They will feel more supported, they won’t have to use their holiday and they won’t lose out on pay (which can be a significant factor if the individual is also funding their own treatment). All in all, a simple gesture of payment will help employees through what is already, for many, a very stressful experience.

Yes, there are associated costs to the employer though in reality this is unlikely to yield a huge uptake from employees so costs should at least be limited. The benefits for the employer will be in promoting a supportive culture and boosting employee loyalty. 

Introducing a fertility leave policy

Whether paid or not, it will be useful to introduce a fertility leave policy in the workplace so that employees have clear guidance when they need it. 

Fertility treatment is itself unpredictable, which makes defining a set policy tricky. Here are some points to consider when deciding what will work best for your workforce:

1. How many days / hours of leave are allowed and will this be set or open to extension with discretion? There is no set formula for any individual – some may obtain a successful outcome after just a handful of appointments. For others, the journey can be long and complicated. You will need to decide how much time off you are prepared to offer to employees.
2. If employees can choose to work flexibly instead of taking time off, for example starting earlier or working later on days when they receive treatment in order to make up their hours, then explain how that will work and who that should be agreed with.
3. Will the employee need to provide any kind of evidence that they are undergoing treatment? Employers may well want comfort that the policy will not be abused and ask for a letter which confirms the appointment or a letter from the GP to confirm the employee is undergoing treatment. Keep in mind that the contents of those letters could contain very sensitive personal information and should only be requested and stored if necessary and in line with your workforce data privacy notice.
4. How much notice will be required to request time off? The nature of the treatment can mean that employees are required to attend last-minute appointments or scans in order to make sure that they don’t miss out on a critical step of the fertility cycle. Ideally, the employee should be given flexibility to make last minute requests.
5. How will time off be arranged? Not everyone is comfortable in sharing their experience and may appreciate being able to simply book the time off discretely (not everyone will feel able to discuss it with their line manager).
6. What additional support will be offered for employees to administer injections or take medication? Certain medication may need to be taken at very specific times of the day so consider whether employees may need to be excused from meetings or to step away from the phone and if this should be included as separate guidance for managers. 
7. Is the employee comfortable taking medication in the workplace (if necessary) or can you offer them the flexibility of working from home on a temporary basis whilst they need to take medication? This may also be useful for employees who have temperature-controlled drugs that need to be stored in the fridge until needed.
8. Consider also whether the policy needs to set out any other specifics such as: 
   • Is the fertility leave just for medical appointments or can it also be used for counselling sessions?
   • Will the company’s policy include permitted time off to accompany a partner to fertility treatment? 
   • Will it include time off for recuperation in the event of failed fertility treatment?

Additionally, this can be a very emotional and difficult experience, so it may not be appropriate to say ‘good luck’ or ‘exciting news’ even if meant well. For any colleagues involved, it might help to have some separate guidance on how to discuss fertility treatment with the individual involved and keep in mind that one size certainly does not fit all!