Irritable Bowel Syndrome (IBS) and other functional digestive diseases contribute significantly to work absenteeism. IBS in particular is a widespread disease with estimates putting the number affected at between 25 and 55 million people in the United States alone. Although I don’t suffer from a digestive illness 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 led me to investigate what legal protections may be available to someone who is having trouble attending work due to symptoms of IBS and other digestive conditions. I previously wrote about 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, JOB-PROTECTED leave in a 12-month period. FMLA has several advantages for someone suffering from IBS, Crohn’s disease, or other digestive ailments. First, although the leave is unpaid, the employee’s position is protected during the leave. Second, the leave does not have to be taken all at once, but can be taken intermittently, and even hour by hour. For my friend, who had particular difficulties getting to work on time due to the IBS showing up more frequently in the morning, being able to take an hour here or there to cover delays would obviously be a useful protection. Third, the all-too-important health insurance benefits continue during the leave period.
In order for an employee suffering from IBS to qualify for FMLA leave, 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. With respect to private (eg, non-governmental) businesses, an employer is covered as long as it has employed 50 or more employees in 20 or more work weeks within any of the last 2 calendar years.
For the employee to be covered by FMLA, they must have worked at least 1,250 hours in the last 12 months for their employer. The employee must also work at a location where 50 or more employees of that employer work within a 75-mile radius.
Finally, to qualify for Family Medical Leave, the employee’s IBS or other digestive illness must meet the definition of “serious medical condition” as defined in the FMLA. This means a condition that prevents the employee from working and that has resulted in a confinement to a hospital or other health care facility, or is the subject of ongoing treatment by a medical professional. FMLA regulations also specifically recognize chronic health conditions that may qualify for leave. These conditions occur over a period of time and “may cause episodic rather than continuous periods of disability.” This would certainly seem to describe the situation faced by most IBS sufferers.
The reader should understand that the Family Medical Leave Act is a complex statute that is backed by voluminous and complex regulations. There will be rules, exceptions to those rules, and then exceptions to exceptions. Entitlement to the license is a specific determination made on a case-by-case basis and there is the possibility of confusion and/or conflict. If you feel you are being treated unfairly by your employer, or if you have questions or concerns, I recommend speaking with an employment lawyer to discuss your specific set of circumstances.