Fertility in the workplace – mental health & wellbeing guidance for employers

National Fertility Awareness Week (4 – 8 November 2024) has put a spotlight on infertility which is an issue faced by around 9 – 15% of couples in the UK (many of whom are employees).

In the UK, infertility extends beyond personal lives and can impact employees in the workplace; influencing employees’ mental health, productivity, and overall well-being.

In this article, we explore how infertility impacts the workplace and outline steps that employers can take to create a supportive environment for employees dealing with fertility challenges.

The Reality of Infertility in the Workplace

Infertility is a growing issue in the UK, with estimates suggesting that approximately 3.5 million people face fertility challenges. A survey by Fertility Network UK revealed that over 90% of people experiencing infertility feel it affects their mental health, while nearly 70% report negative impacts on their work life, including the ability to focus and cope with daily tasks.

Infertility treatments, including IVF, are physically and emotionally taxing and often require time off work for consultations, procedures, and recovery. Coping with fertility issues at work can be extremely stressful and it is worth remembering that men, just as much as women, can be affected emotionally by this. The average IVF cycle can take several weeks, and since it may require multiple rounds to succeed, the time commitment for employees can be considerable.

Additionally, the financial implications of fertility treatments are substantial, often leading to financial strain for employees without supportive policies. Many (particularly women) feel the need to hide their struggles for fear of career repercussions, further compounding stress and anxiety.

This has the potential to isolate employees, making it crucial for employers to create an environment that encourages open communication and support.

The Business Case for Supporting Fertility in the Workplace

Supporting employees through infertility benefits and policies where possible, helps show that a company values its employees’ well-being, which can significantly impact morale, retention, and overall productivity.

Research highlights that companies with strong employee support systems, including fertility assistance, experience better employee retention and satisfaction. A supportive approach can also help reduce presenteeism (where employees are physically at work but mentally distracted), which has been shown to affect nearly 20% of those undergoing fertility treatments.

Steps for Employers to Support Employees Facing Infertility

There are a number of ways in which an employer can support employees dealing with infertility, with just some of these set out below:

Implement Fertility Support Policies
Many companies are now including fertility treatment support within their benefits packages. Some businesses offer financial assistance for treatments like IVF or counselling services to help employees manage stress and mental health. If funding support is not feasible, consider flexible policies allowing for paid leave or sick days during treatment cycles.

Flexible Working Hours and Remote Work Options
Allowing flexible hours or remote work can make a significant difference. Many fertility treatments require multiple medical appointments, and the physical demands can be taxing. By offering flexible work schedules, as appropriate, employers can alleviate some of the burdens and give employees the space they need to manage their health and productivity.

Foster an Inclusive Culture and Open Dialogue
Creating a culture where employees feel safe to discuss their challenges openly can be transformative. This may include providing training to managers on handling sensitive discussions and establishing clear channels for employees to share their needs. Normalising conversations around infertility, just as employers do with other health issues, can create a more inclusive and understanding environment.

Provide Mental Health Resources
The emotional toll of infertility is significant. Providing access to counselling, either through Employee Assistance Programs (EAP) or external mental health resources, can be extremely beneficial for employees. This support could help employees cope with the stress and emotional complexities associated with fertility challenges.

Consider Paid Fertility Leave
While not mandatory in the UK, some employers offer paid fertility leave and a growing number of companies now do so. This can include time off for treatments, recovery, or dealing with the emotional aspects of infertility. Paid fertility leave could help reduce stress for all impacted employees, allowing them to focus on their health without fearing financial or career repercussions.

Supporting employees through infertility isn’t merely a “nice to have” – it’s an essential part of building a compassionate and inclusive workplace. Fertility Network UK has reported that employers who have implemented a fertility policy feel that employees have responded positively and responsibly.

By recognising and addressing the challenges associated with infertility, employers can improve their workplace culture and show that they are invested in the well-being of their employees.

Introducing a Fertility Policy

A significant number of companies within the UK are yet to introduce fertility-friendly policies. Many companies don’t understand that fertility treatment is a necessary medical treatment or may underestimate the number of employees who could benefit from such a policy.

With a Fertility Policy being one of the clearest ways to support employees, we have set out below some guidance as to what a fertility policy should look to do:

-Recognise the stress associated with undergoing fertility treatment and set out the employer’s commitment to a sensitive and supportive approach.

-Explain the confidential nature of the policy, which should encourage employees to disclose the reason for their absence.

-Set out what time off employees will be permitted to take in connection with fertility treatment, including how much time off will be provided for each stage of treatment – e.g. during initial investigation, during treatment and after treatment. Options include offering unlimited leave or giving a set number of paid days off with the option of additional unpaid leave or flexible working.

-Set out whether some or all of the time off will be paid and, if so, the applicable rate of pay.

-Set out the procedure for employees asking for time off, including who the employee should ask, how much notice is required and what documentation will be required as supporting evidence (e.g. appointment cards).

-Make reference to the company’s flexible working policy, since employees going through fertility treatment may wish to request temporary flexible working in addition to permitted time off (e.g. a temporary change to their working pattern to cover an IVF cycle); and

-Make reference to any other policies or assistance programmes available to employees going through fertility treatment, since they may also struggle with ill mental health or work-related stress.

In addition to taking steps to make their workplace a more inclusive place for those going through fertility treatments, employers should be mindful of the following:

Time off for Antenatal Appointments and Fertility Treatment:

-In the UK, employees have a legal right to time off work for antenatal/ post-natal care and the right to request flexible working but there is no statutory right to time off work for fertility treatment.

-If an employer refuses time off for fertility treatment, an employee may be able to bring an Employment Tribunal claim for indirect sex discrimination.

-Employers should treat medical appointments related to fertility in the same way as any other medical appointments (under an employee’s terms and conditions, and / or relevant workplace policy).

-Employers may wish to consider allowing some flexibility for an employee to undergo fertility treatment – likely to have wider benefits for employee relations.

Employee rights – IVF

There are a number of different types of assisted conception, one of the best known being in vitro fertilisation (IVF).

It should be remembered that: –

-A woman undergoing IVF treatment will be protected by sex discrimination law from the time of follicular puncture (when the ova are collected) until the implantation of fertilized ova in the uterus immediately after fertilisation. An employer that treats an employee less favourably during this time because she is undergoing IVF treatment will have discriminated against her because of sex.

-Once the fertilised ova are implanted in the uterus, the employee is pregnant. This starts a “protected period”, whereby the employee is protected from pregnancy and maternity discrimination until the end of maternity leave (or return to work or termination of employment).

-If the implantation subsequently fails, and the pregnancy ends, the protected period ends after a further two weeks have elapsed. If an employer treats an employee unfavourably during this period because of the pregnancy, the employee will have suffered pregnancy and maternity discrimination.

-It is important to remember that it can still be unlawful to treat an employee unfairly because of pregnancy, maternity or breastfeeding outside of the protected period if that unfair treatment stems from a decision made during the protected period or relates to a separate claim under sex discrimination.

At a time when infertility awareness is growing, employers have an opportunity to set a new standard in employee support. As a law firm with specialist experience in advising on fertility in the workplace, we offer guidance to companies wishing to implement policies that address fertility and other related challenges.

If you would like further information on how best to support employees going through infertility, or if you are considering implementing a fertility policy then please contact Laura Salmond, Partner and Natasha Wylie, a senior solicitor in our Employment Team.

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