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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