Irritable Bowel Syndrome (IBS) and other functional digestive diseases are significant contributors to workplace absenteeism˳ IBS in particular is a pervasive disease with estimates placing the number of those affected at 25 to 55 million people in the United States alone˳ Though I do not suffer from a digestive disease myself, I have become familiar with IBS through the experiences of a friend who was facing termination from work due to chronic lateness˳ He came to me for legal advice on how to handle the situation˳ This prompted me to look into what legal protections may be available to someone having attendance issues at work due to the symptoms of IBS and other digestive diseases˳ I previously wrote on the Americans with Disabilities Act (ADA) with a special focus on digestive diseases˳
The Family Medical Leave Act (FMLA) allows employees with a serious medical condition to take up to 12 weeks of unpaid but JOB PROTECTED leave in a 12 month-period˳ FMLA has several advantages to someone suffering from IBS, Crohn’s Disease or other digestive diseases˳ First, although the leave is unpaid, the employee’s position is protected while on leave˳ Second, the leave does not have to be taken all at once but may be taken intermittently, and even on an hour by hour basis˳ For my friend who had particular difficulty with getting to work on time due to the IBS flaring up most frequently in the morning, being able to take a hour here or there to cover lateness would obviously be a helpful protection˳ Third, all-too-important health insurance benefits are continued during the period of leave˳
For an employee suffering with IBS to qualify for leave under the FMLA, there are several fact-specific criteria that must be met˳ First, the person’s employer must be covered by the FMLA˳ All public entities, including Federal, State, County and Local agencies (including schools) are covered˳ In regard to private (e˳g˳ non-government) businesses, an employer is covered so long as it employed 50 or more employees in 20 or more work weeks within either of the last 2 calendar years˳
For the employee to be covered by the FMLA, he or she must have worked at least 1,250 hours within the last 12 months for his or her employer˳ The employee must also work at a location where 50 or more employees of that employer work within a 75 mile radius˳
Finally, in order to qualify for Family Medical Leave, the employee’s IBS or other digestive disease must meet the definition of a “serious medical condition” as defined in the FMLA˳ This means a condition which prevents the employee from working, and which resulted in an in-patient stay at a hospital or other medical care facility, or is the subject of ongoing treatment by a medical professional˳ The FMLA regulations also specifically recognize chronic health conditions that can qualify for leave˳ These conditions occur over a period of time and “may cause episodic rather than continuing periods of incapacity˳” This would certainly seem to describe the situation faced by most sufferers of IBS˳
The reader should understand that the Family Medical Leave Act is a complex statute which is supported by voluminous and complex regulations˳ There are going to be rules, exceptions to those rules, and then exceptions to the exceptions˳ The entitlement to leave is a fact specific determination made on a case-by-case basis and there is the potential for confusion and/or conflict˳ If you feel you are being treated unfairly by your employer, or you have questions or concerns, I recommend speaking with an employment attorney to discuss your specific set of circumstances˳
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