Viewpoint: Does the FMLA Cover Abortion and Related Travel?

In the aftermath of the U.S. Supreme Court's Dobbs decision, questions regarding abortion and the Family Medical and Leave Act (FMLA) are coming fast and furious: Can an employee take FMLA leave to obtain and recover from an abortion? What if the abortion is elective? And now that abortion will be illegal in at least some states, is travel to another state to obtain an abortion covered by FMLA?

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Oddly enough, the U.S. Department of Labor (DOL) has never provided meaningful guidance on these specific questions. Nevertheless, it seems apparent that the FMLA covers abortion and travel to obtain an abortion.

Let me explain.

Is Abortion Covered by the FMLA?

There are several reasons why obtaining and recovering from an abortion would be covered by the FMLA:

1. You seemingly need not go further than Section 120(a)(4) of the FMLA regulations, which very clearly tells us that the FMLA applies in situations where the expectant mother has an "incapacity due to pregnancy." When these two elements are present: a) an incapacity, and b) the incapacity is due to pregnancy, we have FMLA leave.  Section 120 even states further: "The expectant mother is entitled to leave for incapacity due to pregnancy . . . even if the absence does not last for more than three consecutive calendar days."

2. It seems to me that the passage above makes clear that FMLA protects time off to obtain an abortion, but one could also rely on the traditional definitions of serious health condition in finding FMLA applies to an abortion. For instance, if the individual has an overnight stay in the hospital due to the abortion, it's covered by FMLA. If the individual undergoes "continuing treatment" because of the abortion, it's covered by FMLA. When administering these leave requests, it's critical that you obtain medical certification from the employee's health care provider and maintain the confidentiality of the employee's medical information.

3. The legislative history indicates that miscarriage is considered a "serious health condition" under the FMLA, so it tends to lend support for the notion that other abortive procedures would be covered. H. Rep. No. 103-8, at 40 (1991); S. Rep. No. 103-3, at 29 (1993). The House and Senate Committee Reports listed the (non-exhaustive) types of illnesses and conditions that would likely qualify as serious health conditions:
"Examples . . . include but are not limited to . . . ongoing pregnancy, miscarriages, complications or illnesses related to pregnancy, such as severe morning sickness, the need for prenatal care, childbirth and recovery from childbirth." S. Rep. No. 103-8, at 40 (1991); S. Rep. No. 103-3, at 29 (1993).

With this regulatory language and legislative history in mind, it leads to the conclusion that an absence from work to obtain and recover from an abortion is covered by the FMLA.

I have not touched upon state law here, but it's quite possible, in fact likely, that various state leave laws would afford an employee protection in these instances, so be sure to check whether state law also would apply here.

Below are two questions now being asked about FMLA leave and abortions.

Does it make a difference if the abortion is elective or medically necessary/recommended (such as in the case where the mother's life is in danger)?

I had a chance to discuss this at some length with one of my fellow FMLA die hards and my good friend, Matt Morris, vice president at ComPsych, and we agree: If the health care provider certifies a serious medical condition, we arguably must approve the leave. It does not matter whether the procedure is elective or not.

Is Travel to Obtain an Abortion Covered by the FMLA?

Very few courts have given us guidance as to whether travel time itself qualifies as part of the FMLA leave allotment.  My quick take: If it's clear that the treatment involved will occur on Day X, then a court likely would find that the travel necessary to get to the destination by Day X is so intertwined with the need for leave that it should be considered part of the protected leave as well.

One case I find persuasive on this issue is Michaels v. City of McPherson, a federal trial court case from a few years ago. In Michaels, the employee's stepdaughter was required to travel out-of-town for medical treatment. The employee requested leave for two days, planning to help his wife drive, and then attend the exam with his daughter. The employer denied the request, requiring that the employee work instead of traveling with his daughter.

In defending against the FMLA suit, the employer argued that leave from work was merely a convenience, and not a medical necessity. The employee, however, argued that leave was medically necessary in order to travel to the out-of-town medical appointment. The court declined to dismiss the case, finding that travel to another state for treatment very well could be covered by FMLA.

Here, travel was so intertwined with the treatment itself (which independently was covered by FMLA) that it also likely was protected by the FMLA. Seems to be a persuasive case in the "travel for abortion" context, too.

I just wish the DOL might use this as an opportunity to provide clarity so we won't have to continue guessing.

Jeff Nowakis a shareholder at Littler, an employment and labor law practice representing management, and author of the FMLA Insights blog, where an extended version of this article first appeared. © 2022 Jeff Nowak. All rights reserved. Republished with permission.