Infertility is a medical condition that affects many individuals and couples, bringing with it emotional, physical, and financial challenges. Employers in Ontario must grapple with how to accommodate workers undergoing fertility procedures. Although there is no specific legislation in Ontario that addresses employees' rights during infertility treatment, employees may be entitled to time off work to undergo infertility treatment under their employment contract and the Employment Standards Act. In addition, broader principles of human rights law provide important guidance. These principles of human rights law are the focus of this article.
Employers have an obligation to accommodate employees with disabilities and protect against discrimination under Ontario's Human Rights Code (the "Code"). Ignoring these obligations could lead to significant legal and reputational risks. On the other hand, a proactive approach can foster a supportive and inclusive workplace, which benefits both employers and employees.
Legal Foundation: Ontario's Human Rights Code and Infertility
Under the Code, employers are prohibited from discriminating against employees on the basis of sex or disability. While infertility is not explicitly listed as a ground of protection, it can fall under the headings of sex (through its connection with pregnancy) or disability.
The Ontario Human Rights Commission's Policy on Preventing Discrimination because of Pregnancy and Breastfeeding emphasizes that discrimination because of pregnancy and breastfeeding includes discrimination because a woman is trying to get pregnant or is receiving fertility treatments. Infertility can also be considered a disability, which is a separate protected ground under the Code.
In order to meet their obligations under the Code, employers need to consider accommodations for employees undergoing treatment for infertility, including flexible work schedules, time off for medical appointments, or modified job duties.
The Duty to Accommodate: What Does It Mean?
Under the Code, the duty to accommodate requires employers to take reasonable steps to ensure that employees who are receiving fertility treatments can continue to work, provided these accommodations do not cause undue hardship to the employer. In the context of infertility, reasonable accommodation might involve providing time off work for fertility treatments, allowing flexible scheduling, or enabling remote work for employees undergoing procedures such as in-vitro fertilization (IVF).
It's important to emphasize that each case should be considered individually. Employers are not required to implement every request made by an employee but must engage in a meaningful process to find an accommodation that works for both parties. The standard of "undue hardship" to refuse accommodation is a high threshold, meaning that an employer must demonstrate significant hardship based on health and safety requirements or the cost of accommodations. In most cases, accommodations related to infertility treatments—such as adjusting work hours or allowing for medical leave—are unlikely to meet this standard of undue hardship.
Infertility Treatment and Employment: Real-World Considerations
For many employees, infertility treatment involves numerous medical appointments, often scheduled during working hours. This can present challenges for both employees and employers. While employees may use personal days or sick leave for these appointments, others may require additional accommodation.
Employers should be prepared to accommodate requests for time off or flexible hours. While an employee undergoing IVF or another fertility treatment is likely to experience frequent absences or varying work capacity, an employer's legal obligation is to find solutions that work for both the employee and the organization. Options such as temporary job restructuring, reduced workloads, or even offering a period of unpaid leave may be reasonable accommodations in these circumstances.
However, employers must be cautious to ensure that they are not inadvertently discriminating against an employee by failing to provide accommodation or creating a workplace environment that makes it difficult for the employee to pursue treatment. The Code protects employees from indirect discrimination, which can arise when an employer's policies, even unintentionally, disadvantage an employee based on a Code-protected ground.
Privacy and Confidentiality
When an employee requests accommodation for a medical condition, the employer has an obligation to respect the employee's privacy. This is particularly sensitive in cases of infertility, as the issue can be deeply personal. Employers should not ask for more medical information than is necessary to implement accommodations. Employees are only required to provide enough detail to establish that they need an accommodation, without divulging the specifics of their condition unless absolutely necessary (for instance, where the diagnosis relates to the accommodation being sought).
Medical documentation supporting an accommodation request should be handled confidentially and only shared with those directly involved in the accommodation process, such as HR staff or the employee's direct supervisor. Employers must also ensure that any records related to the employee's medical condition are securely stored and kept private.
Building an Inclusive Workplace
Beyond legal compliance, employers should view accommodating employees undergoing fertility treatment as an opportunity to cultivate an inclusive and supportive work environment. Infertility is often misunderstood, and employees may feel hesitant to bring their needs forward due to fear of stigma or workplace repercussions. Creating a culture of openness, where employees feel comfortable requesting accommodation, benefits everyone.
One way to foster such an environment is through manager and staff training. Educating management about the duty to accommodate under the Code can help prevent missteps and ensure that requests for accommodation are handled respectfully and effectively. Employers should also consider implementing policies that explicitly address accommodations, including infertility, so that employees understand the process for making requests.
Policy Development: A Proactive Approach
Employers who want to stay ahead of potential issues should consider developing formal policies for accommodating employees, including those undergoing medical treatments for infertility. A well-drafted policy provides clarity for both employers and employees. It should outline the accommodation process, including the steps an employee should take to request an accommodation, what types of accommodations might be available, and how privacy will be protected.
By having clear policies in place, employers can reduce confusion, ensure that all accommodation requests are handled fairly and consistently, and demonstrate a commitment to supporting employees through difficult personal challenges.
Conclusion: The Path Forward for Employers
As more employees seek fertility treatment, the obligation to provide workplace accommodations will become increasingly relevant. Employers have both a legal and moral responsibility to support their employees during this challenging time. Ignoring these responsibilities can result in legal consequences, but a proactive approach can foster loyalty, improve retention, and enhance workplace morale.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
