Almost every intake call about fertility treatment has the same detail buried in it. The client mentions, almost in passing, that they’d been blocking off “doctor’s appointments” on their calendar for months before they ever said the word “infertility” out loud to their manager.
Anyone who’s been through IVF monitoring knows why. The clinic calls the night before to say what time bloodwork and ultrasound are the next morning, and it’s often every other day, sometimes daily. Retrieval means sedation and real recovery time, not a long lunch. A transfer has to happen on the embryo’s schedule, not the team’s.
So people absorb it quietly for as long as they can. They burn PTO, work from the clinic parking lot, log back on within the hour so nobody notices. And then, often within weeks of finally telling HR what’s actually going on, the ground shifts: a termination out of nowhere, or a performance improvement plan built around problems that were never problems before.
If that timeline sounds familiar, the question isn’t whether it feels unfair. It’s whether California law actually requires an employer to accommodate fertility treatment, and whether firing someone in the middle of it is illegal. It usually is. Several overlapping laws protect employees going through IVF in California, and which one does the most work for you depends on the specifics of your situation and how your employer handled the request.
Infertility Counts as a Disability Under FEHA
California’s Fair Employment and Housing Act defines disability more generously than most people assume. A condition doesn’t have to be permanent or visible to qualify. It just has to limit a major life activity, and California courts and the Civil Rights Department have long treated conceiving and carrying a child as one. Infertility and the treatments used to address it fall squarely within that.
That protection reaches nearly every employer in the Bay Area tech scene, since FEHA applies to anyone with five or more employees. A ten-person startup is covered. So is a company with thousands.
Once an employee discloses a disability and asks for help managing it at work, the employer is legally required to sit down and have a real conversation about what accommodation would work, what the law calls the interactive process. For fertility treatment, that conversation is rarely complicated: a shifted schedule to make morning monitoring appointments, a couple of weeks off around retrieval, working from home on procedure days. Courts have described accommodations like these as reasonable almost by default, and an employer would need an unusual set of facts to claim that letting someone take two mornings a week for medical appointments creates a real hardship.
The trouble is that a lot of managers never get trained on any of this, so they hear “I need flexibility for a medical issue” and translate it internally to “unreliable.” Then, a few weeks later, the exact same absences that were never flagged before start showing up in a corrective action memo. That shift in how the same facts get characterized is usually the clearest evidence in these cases, more telling than the termination meeting itself.
CFRA and FMLA Can Turn Treatment Days Into Protected Leave
Separately from the accommodation duty, California’s Family Rights Act and the federal Family and Medical Leave Act both give eligible employees up to 12 weeks of job-protected leave for a serious health condition, and infertility treatment qualifies as one.
The two laws don’t reach the same employers, though. CFRA covers any California employer with five or more employees. FMLA kicks in only at 50 or more employees within 75 miles of the worksite, and both require roughly a year of tenure and 1,250 hours worked before an employee is eligible. So someone at a large, established company is often covered by both laws at once, while someone at a smaller startup might have CFRA rights but no FMLA rights, or might not have hit the tenure threshold yet at all.
Importantly, none of this leave has to be used in one continuous block. It can be taken intermittently, which is really the only way it maps onto how IVF actually works: a few hours for bloodwork one week, a full day for retrieval the next, spread out over however long the cycle takes. An employer that denies intermittent leave, or leans on an employee to consolidate appointments so it’s less disruptive to the team, is pushing against what the statute was written to allow.
Firing Someone for IVF Can Also Be Sex Discrimination
This is the part of the analysis most employees have never heard of, and it comes from a federal appellate case that’s now the standard citation on this issue. In Hall v. Nalco Co., the Seventh Circuit reversed summary judgment for an employer that had fired an employee shortly after a failed IVF cycle, whose own internal notes described the reason as “absenteeism-infertility treatments.”
The court’s reasoning was straightforward once you sit with it: IVF is a procedure performed only on people with the physical capacity to become pregnant, so an adverse action tied to that procedure falls along sex lines no matter how neutral it sounds on paper. That makes it sex discrimination under Title VII’s Pregnancy Discrimination Act, even though infertility as a medical condition affects men and women alike.
California courts read FEHA’s pregnancy-discrimination language at least as broadly as federal courts read Title VII, so this reasoning transfers over cleanly. What it means for an employee is that you don’t have to prove some abstract pattern of being treated worse because you’re a woman. You just have to show the adverse action was connected to a medical procedure tied to reproductive capacity, and termination or discipline that follows closely on an IVF-related absence pattern tends to make that connection on its own.
There’s a newer federal layer here too. The Pregnant Workers Fairness Act, and the EEOC’s 2024 regulations implementing it, specifically list infertility and fertility treatment among the conditions covered by the accommodation requirement, as long as the treatment is being sought by someone with the capacity to become pregnant who’s trying to conceive.
Still, that protection may be narrower than people expect: it protects the partner undergoing the procedure, not necessarily a non-birthing partner going through the process alongside them. For that second group, FEHA’s disability protections tend to be the stronger claim, since they don’t depend on reproductive capacity the way the PWFA does.
Do You Actually Have to Tell Your Employer You’re Doing IVF?
Less than most people think. To request CFRA or FMLA leave, or a disability accommodation, you generally need to give your employer enough information to understand that a serious health condition is involved and roughly how much time or flexibility you’ll need. A medical certification usually just confirms that a condition exists and how long it’s expected to last. It doesn’t require a diagnosis spelled out for your manager.
This gap between what the law actually requires and what people feel pressured to share is where a lot of the damage happens. Employees over-disclose because they want to seem like a team player, or because a manager keeps fishing for more detail, and then that disclosure becomes the exact date opposing counsel would later point to as the start of a retaliation timeline. If there’s one practical thing to take from this section, it’s that sensitive medical detail can go through HR instead of a line manager, and you’re allowed to keep it there.
SB 729 Changes The Insurance Picture, Starting This Year
Apart from leave and accommodation, California’s SB 729 took effect January 1, 2026, and it requires large-group fully insured health plans, meaning those covering 101 or more employees, to cover the diagnosis and treatment of infertility. That includes up to three completed egg retrievals per person and unlimited embryo transfers under standard clinical guidelines, and it broadens who counts as infertile to include people who need medical assistance to conceive for reasons other than a diagnosed condition, including same-sex couples and single parents by choice.
It’s worth being clear about what this law isn’t, because clients sometimes assume it covers more ground than it does. SB 729 is an insurance mandate, not a leave law or an anti-retaliation statute, and it doesn’t reach small-group plans, individual market plans, or self-funded employer plans, which is how a fair number of larger tech employers actually structure their benefits. Whether your coverage has already changed also depends on your plan’s renewal date. But none of that affects the separate question of whether you can be fired for using fertility treatment, which is governed by the laws above regardless of what your insurance does or doesn’t pay for.
What Does Retaliation Look Like?
Very few employers are direct enough to say “we’re firing you for doing IVF.” Instead, you might get face something like:
- A PIP built around attendance issues that were not flagged when they happened
- Being quietly removed from a project right after requesting leave
- A manager who starts documenting minor issues in granular detail for the first time, and only for you
Timing is often some of the best evidence available. If discipline, a demotion, or a termination follows within weeks of a procedure related to an IVF treatment, that proximity is exactly the kind of circumstantial evidence that carries these cases.
What If You’ve Already Been Fired?
Write down what you remember now, while the timeline is still fresh: when you disclosed your treatment or asked for leave, who you told, how they responded, and how much time passed before things turned. Hold onto calendar invites for medical appointments, any HR emails, and performance reviews from both before and after the disclosure.
There are real deadlines attached to this. In California, you generally have three years from the last discriminatory act to file an intake with the Civil Rights Department, and once you get a right-to-sue notice, you have one year to actually file suit. Three years feels like plenty of time, but evidence and memory both degrade the longer you wait, so treat that window as a limit, not a target.
If you’re still in the middle of treatment and already feeling friction at work, it’s worth talking to an employment attorney before it turns into something worse. A short, confidential conversation can tell you what you’re actually required to disclose, what you can reasonably ask for, and what to start documenting now, just in case.
Le Clerc & Le Clerc, LLP represents Bay Area employees in these cases on contingency. There’s no cost to find out where you stand.