Inspiration from the West

While this type of employee benefit is not yet widespread in the domestic labour market, it is clearly gaining popularity abroad, particularly in the United States, where tech giants introduced it as early as 2014. Over time, the trend has spread beyond Silicon Valley. According to a study conducted by Mercer[1] among 459 firms, in 2020, some 42% employers with at least 20,000 employees subsidised costs of in vitro fertility treatment (in 2015, the percentage in this category was 36%). Among employers with at least 500 employees, the costs of IVF were covered by 27% (whereas in 2015 it was 24% of employers in this group). This idea is in line with trends present on the domestic labour market, where investment in so-called employer branding is noticeable, also by offering employees interesting and attractive benefits.

The above circumstances and the fact that multinational corporations operate in Poland indicate that ever more employers may consider introducing such a benefit. In this article, we consider whether this type of employee benefit can be introduced under current legislation.

Is it possible for an employer to co-finance in vitro under Polish labour law?

IVF treatment is regulated in Poland by the Infertility Treatment Act of 25 June 2015 ("Act") and is therefore a legally permissible medical procedure. The most common treatment is for a couple (man and woman) who are married or in cohabitation. According to the Act, infertility treatment by in vitro fertilisation can be undertaken after exhaustion of other treatments conducted for a period of at least 12 months, unless it is not possible, according to current medical knowledge, to obtain pregnancy through other methods.

The issue of employer co-financing of IVF treatment is not regulated by law or other separate regulations. The law also does not formulate a list of benefits that an employer can subsidise. Employer participation in costs of infertility treatment with the in vitro method, if carried out in accordance with the law, appears to be permissible. Moreover, from the perspective of labour law, benefits targeted at strictly defined groups of persons (here: those wishing to have children but suffering from infertility) do not in themselves constitute discrimination.

Potential sources of co-financing

Of the sources of funding for IVF subsidies, one particularly worth considering is their funding from the employer's working capital and from the company's social benefits fund ("Social Fund”).

There are no legal obstacles for employer financing of subsidies for a legitimate IVF procedure from working capital resources (the employer's own resources).

• Selection of such a source of co-financing grants employers a great deal of freedom in setting criteria and conditions for granting such a benefit. Thus, an employer may, for example, determine the universality of such a benefit (e.g., subsidising every employee expressing such a wish) or introduce quotas or quantitative limits to subsidies (e.g., one subsidy during employment or within a period specified by the employer). An employer therefore has flexibility to adapt funding rules to employment policy. However, when drafting internal regulations in this respect, particular attention should be paid to principles of equal treatment and non-discrimination.
• Internal acts constituting the right to receive subsidies for infertility treatment with the in vitro method must be constructed in a way that does not breach the above standards. As a rule, it is deemed a violation of equal treatment in employment if an employer differentiates the situation of an employee on one or more of the grounds indicated in regulations (including sex, age, disability, race, religion, nationality, political beliefs, union membership, ethnic origin, religion, sexual orientation, employment for a definite or indefinite time, full-time or part-time employment) resulting in, in particular unfavourable shaping of employment conditions or omission in granting other work-related benefits, unless the employer substantiates with objective reasons. Also of relevance in this context is the Code principle that employees are entitled to equal remuneration for equal work or work of equal value (art. 18[3c] of the Labour Code). According to this provision, the concept of remuneration includes all components of remuneration regardless of their name and nature, as well as other work-related benefits granted to employees in monetary or non-monetary form. Supreme Court adjudication confirms that the concept of remuneration within the meaning of this article is interpreted broadly. When deciding to introduce subsidised in vitro infertility treatment, employers should therefore not impermissibly differentiate the situation of employees (e.g. on the basis of full-time or part-time employment, unless there is an objective justification in a particular case).
• In the context of subsidising in vitro infertility treatment from the employer's working capital, it is also a major challenge to structure a subsidy scheme in such a way that it complies with personal data processing regulations. Indeed, there may be doubts as to the basis for processing personal data on which it would be safe to rely when introducing such a benefit scheme paid out from working capital. Particular attention should be paid to separate rules on the processing of health data, which may at times significantly relate to subsidisation of an IVF procedure.

It is worth considering IVF subsidies from the Social Fund, which is a fund earmarked, inter alia, for the financing of social activities for entitled persons (e.g., employees and their families). Social activities are particularly understood as services provided by employers for various forms of leisure, cultural and educational activities, sports and recreation or the provision of material assistance – in-kind or financially.

• The main objective of the Social Fund is to alleviate social inequalities and help disadvantaged people in need. It would therefore be important to examine in each case whether the particular concept of subsidising the IVF procedure is compatible with the essence and purpose of the Social Fund. In general, difficulties in enlarging the family most often represent a difficult life, family or material situation, especially when they involve costly treatment or long-term attempts at fertilisation. In the case of subsidies in line with the social nature of the fund in question, it seems that subsidies for in vitro infertility treatment can qualify as social activity in the form of material assistance. Its financing from the Social Fund should, however, be established in Social Fund regulations and granted and accounted for in accordance with the Company Social Benefits Fund Act of 4 March 1994 ("Social Fund Act") and regulations adopted by the employer.
• The basic principle for granting of benefits from the Social Fund is the application of so-called social criteria. They are regulated in art. 8 sec. 1 of the Social Fund Act, according to which the granting of concessionary services and benefits and level of subsidies from the Social Fund depends on the life, family and material situation of an entitled person. This means that the employer, when granting benefits from the Social Fund, should ensure that they are adequate to the life, family and material situation of the entitled person (although it is assumed that some benefits may be granted on the basis of so-called universal availability). In the case of subsidies to the IVF programme, it would therefore be necessary to assume the need to apply so-called social criteria to assess needs of a person entitled to benefit from the Social Fund. Thus, it would be necessary to examine the situation of an eligible person in each case. If financing subsidies for the in vitro procedure from the Social Fund, an employer therefore has rather limited freedom to shape the terms of this subsidy, as social criteria are paramount.
• If funding IVF subsidies from the Social Fund, the issue of personal data processing also cannot be ignored. In this case, however, the issue is less controversial than in the situation of financing this benefit from the employer's working capital. In fact, there are legal provisions directly regulating the obligation to create a Social Fund, as well as defining the procedure of its introduction and functioning (applicable to employers creating it obligatorily or optionally). In turn, in relation to health data, art. 9 sec. 1b GDPR[2] allows the processing of, inter alia, data concerning health if necessary for purposes of complying with obligations and controller or data subject exercising specific rights in the area of employment law, social security and social protection (if authorised by EU law or laws of a Member State or by a collective agreement under the laws of a Member State providing adequate safeguards for fundamental rights and interests of a data subject).

Contribution and tax consequences

Selection of the source of funding IVF treatment subsidies is also important for their settlement. This is because establishment and source of such financial support affects possible Social Insurance Institution (ZUS) and tax exemptions. In the context of Social Insurance exemptions, a provision on exemption from taxation (pension and disability pension) of benefits financed from funds allocated for social purposes within the Social Fund is particularly important[3]. This provision applies to benefits financed from the Social Fund, but not from an employer's working capital. From a tax perspective, significant in this context is, among others, the exemption from income tax of cash benefits received by an employee in connection with the financing of social activities (as referred to in Social Fund regulations) funded entirely from the Social Fund or trade union funds up to a total of PLN 1,000 in a tax year[4].     

Summary

Various types of benefits offered by employers have a significant impact on image and competitiveness in the labour market. From the employees' perspective, benefits fitting in with the idea of wellbeing and work life balance now seem to be particularly attractive. Subsidies for infertility treatment using the in vitro method can be regarded as such. On the other hand, from the perspective of employers, it is worth ensuring that the design of such a subsidy complies not only with employment policy, but also with the relevant legal regime.

Joanna Dudek, Natalia Gałązka

[1] https://www.mercer.us/our-thinking/healthcare/new-survey-finds-employers-adding-fertility-benefits-to-promote-dei.html

[2] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons regarding the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation.

[3] §2 sec. 1 point 19 of the Labour and Social Policy Ministry regulation of 18 December 1998 on detailed principles of setting the basis for retirement and pension insurance contributions.

[4] Art. 21 sec. 1 point 67 of the Personal Income Tax Act of 26 July 1991.