FMLA Insights - Guidance & Solutions for Employers

Over the past month, as we recognized the 20th Anniversary of the Family and Medical Leave Act, advocates for employees and employers have been clamoring for changes to the Act.  

On one hand, employee advocates are calling for a broad expansion of the FMLA that would allow for paid leave or broader coverage (e.g., lowering the threshhold so more employers are required to provide FMLA leave and extending the Act to part-time employees).

On the other hand, the employer community has called upon Congress and the Department of Labor to fix the ills of the FMLA.  Count me among them. In a column I wrote for the Chicago Tribune this past weekend, I encouraged federal lawmakers to repair a broken FMLA before they tackle the issue of mandated paid leave. 

My Tribune column naturally was limited because of space.  If I had more room, as I do here, I'd share with lawmakers and the Department of Labor changes I believe are necessary to improve the FMLA so that it works for employees and employers for the next 20 years.

From my experience assisting employers administer the FMLA, I find that the FMLA and its regulations are (most) flawed in three fundamental areas: the definition of a serious health condition, the use of intermittent leave and the medical certification process.  Here's what I'd encourage Congress and the DOL to change:

Clearly Define Serious Health Condition

During its deliberations before passing the FMLA, Congress made clear that the term "serious health condition" was not intended to cover "short-term conditions for which treatment and recovery are very brief,” “minor illnesses which last only a few days,” or “surgical procedures which typically do not involve hospitalization and require only a brief recovery period.”  Rightfully so, these medical conditions should be covered by typical sick leave or PTO policies.  

So, why has "serious health condition" become so watered down?  Let's use a good example.  In a 1995 opinion letter, the DOL found that a common cold or flu, absent complications, would not satisfy the definition of a serious health condition.  WH Opinion Letter FMLA-S7 (Apr. 7, 1995). However, just a year later, DOL pulled back on this interpretation, stating that the 1995 opinion “expresses an incorrect view, being inconsistent with the Department’s established interpretation of qualifying serious health conditions under the FMLA regulations.”  WH Opinion Letter FMLA-86 (Dec. 12, 1996).   In its opinion letter, the DOL stated that minor illnesses would be considered serious health conditions if they otherwise meet the incapacity and continuing treatment prongs of the FMLA.  In doing so, the DOL arguably rendered meaningless the regulation relating to the common cold and flu.  Put another way, minor illnesses that should have never been covered by FMLA are now covered by the Act.  That has to change.

To ensure that employees are provided FMLA leave consistent with what Congress intended, the following changes should be considered:

• Give meaning to the FMLA regulation regarding common colds and the flu, recognizing a strong presumption that these kinds of conditions are not covered by the Act.  The DOL should take a hard look at what's "minor" and make sure those conditions stay in that category.  This is what ordinary sick leave or PTO policies are good for.
• Continuing treatment should be defined as two visits to a health care provider within 30 days of the onset of incapacity.  As it stands now, an employee can go to the doctor once, get an antibiotic, and qualify for FMLA.  Remove the mumbo jumbo in the rules and make it clear -- if the medical condition is serious enough to qualify for FMLA, the employee should have two visits to the doctor.  We require two visits in one year for a chronic condition, so why not two visits in 30 days for a condition that renders the employee incapacitated for several days.  This change would alleviate the need to determine whether the employee is under a "regimen of continuing treatment," which is entirely (and rightfully) confusing to HR professionals.
• Increase the number of days of incapacity.  Common colds and flu can last several days, thereby potentially triggering the FMLA.  The period of incapacity should be a full calendar week.

Use of Intermittent Leave

Ask HR professionals or in-house attorneys to put together a Top Three pet peeve list, and they will tell you the bane of their existence is administering FMLA leave, particularly where intermittent leave is involved.  Why?  Because intermittent leave comes in dribs and drabs, all of which naturally lend themselves to a whole lot of abuse.  In a 2007 survey, "FMLA and its Impact on Organizations," SHRM found that 66% of HR folks reported challenges with intermittent leave abuse and over 40% felt they had to approve a request they believe was not legitimate.  

How do we clean up intermittent leave?  I know all of you have plenty of suggestions (and I welcome them), but here are a few of mine:

• Allow more flexibility in seeking recertification.  Too many certifications supporting intermittent leave list the duration of the condition as "indefinite" or "lifetime."  In these situations, an employer can recertify only every six months.  Unless the employer receives reliable infor­mation that the circumstances have changed significantly, the employee can go quite a bit of time without recertification. Medical certification in these instances should be valid for a much shorter period to time -- perhaps 60 or 90 days.
• Require the use of FMLA leave in half-day or full-day increments.  In its latest regulatory changes, the DOL confirmed that unforeseeable FMLA leave can be taken in teeeeeeny-tiiiiiiiny increments.  What does this mean for employers?  That we will continue to be nickeled and dimed to death.  I am shocked at the amount of time my clients spend logging small increments of FMLA time and following up on these leave requests. Requiring longer increments will greatly help employers track and manage leave, and I think it will cause employees to be more judicious about their use of FMLA.  
• Endorse policies that require submission of doctors' notes for absences.  Under the FMLA, employers arguably cannot require an employee to submit a doctor's note for an absence already covered by valid medical certification.  In fact, employers have been dinged for engaging in such a practice (listen to our podcast on this topic here).  But why?  If the employer has reason to doubt an absence, or simply wants confirmation that the employee was incapable of working, the DOL should support an employer's right to seek confirmation from the employee's doctor.  Simple as that!
• Employers need a better solution for employees who are on indefinite, unpredictable absences from work.  An employee who has rhinitis ten times per month for one-half day each?  One who has a chronic bad back fifteen times per month for 1-2 days per flare up?  Another who has IBS and his schedule is entirely unpredictable?  These present a most difficult conundrum, as the need for leave may or may not be legitimate.  Where do we draw the line?  We may never be able to arrive at a solution that makes everyone happy, but at a minimum, employers must be given the option to deal with these situations to better accommodate their operations, such as temporarily reassigning the employee or placing them on a block leave of absence. 

Medical Certification

This list could just as easily be a continuation of the intermittent leave section above, but here are a few more suggestions where medical certification is concerned:

• Require more specific information in the "medical facts" section of the certification form, including the requirement that the health care provider report a diagnosis.
• Allow employers to obtain more information supporting the notion that a medical condition actually incapacitated an employee from working on a particular occasion. Again, employers often are stuck with whatever the certification on file indicates, yet they have no confidence that, for example, a migraine headache on a particular day renders the employee unable to perform the job.  
• Similarly, employers are skeptical when there appears to be no objective clinical basis for deter­mining that the employee has a serious health conditions that incapacitates them from working.  Instead, the doctor relies on an employee's subjective complaints.  The DOL should insist that medical certification provide evidence of objective clinical evidence of a serious health condition.
• When the employee fails to submit certification or fails to cure a poorly composed certification, there should be a stronger presumption that the employer can deny leave. Too many employers are gun shy about denying leave in these instances.  They also are confused as to the latitude they must give employees to cure an insufficient certification. The DOL should provide stronger language supporting employers' rights in this area.
• The second and third opinion process should carry more weight, and employers should be able to rely on them for absences in the past and the future.  The DOL covers this process in a paragraph or two in the regulations.  However, as employers increasingly use this costly second and third opinion process, these processes should be given greater weight as to absences that occur in the future.  As it stands now, it's entirely unclear whether these opinions apply in the future.  A handful of court cases say that employers should be able to rely on them.  DOL should endorse the same approach.

Dang, I'm pooped.  Chew on these for awhile, then tell me what you would change about the FMLA and its regulations so that it would work better for both employees and employers.  I'll post all feedback below in the comment section.

This past Friday, the United States Supreme Court announced that it would consider whether the Defense of Marriage Act (DOMA) unlawfully denies benefits to gay and lesbian couples who are married in states that allow such unions.  A Supreme Court decision nullifying DOMA could have wide ranging impacts, including how the Family and Medical Leave Act covers "caring for a spouse." 

Let me explain how.

The FMLA allows eligible employees up to 12 weeks of job-protected leave to care for a spouse who suffers from a serious health condition.  But who is a "spouse"?  As an initial matter, the FMLA regulations (at 29 C.F.R. § 825.122(a)) look to state law to define the term:

Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.

The FMLA's provisions, however, are further governed under federal law by DOMA, which very clearly states that:

. . . the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

So, even if a state allows same-sex marriage, DOMA does not recognize the union.  As a result, employees who are in same-sex marriages can lawfully be denied FMLA leave to care for their spouses.  Many states have adopted broader versions of the FMLA so as to provide leave to care for a same-sex spouse or civil partner.  The problem for employers in these states, however, is that leave that is not FMLA qualified cannot be counted against an employee’s FMLA entitlement. 

Let's use an example: if an employee is allowed 12 weeks of leave under company policy to care for his same-sex spouse, but later needs an additional 12 weeks of leave for a health condition that qualifies for FMLA leave,  the employer must grant his request for FMLA leave because the FMLA tells us that the initial 12 weeks he took to care for his same-sex spouse did not qualify as FMLA leave and therefore did not exhaust his FMLA leave entitlement.

If the Supreme Court rules that DOMA violates the right to legal equality for same-sex couples who are legally married under state laws where they live, then the FMLA arguably would provide leave for employees to care for same-sex spouses -- at least in states where same-sex marriage is legal. 

Insights for Employers

As I have noted in previous posts, the number of employers who voluntarily are providing leave to domestic partners and same-sex spouses is increasing among Fortune 500 companies and leading business.  

Before we obtain (possible) guidance from the Supreme Court (expected in June 2013), keep the following in mind: if your leave policies provide employees time off to care for a domestic/civil union partner or same-sex spouse, employers cannot count this leave under the employee's 12-week FMLA allotment, since the FMLA does not recognize these relationships.  To ensure that you are not inadvertently setting yourself up for an FMLA interference claim when providing leave to an employee to care for a domestic/civil union partner or same-sex spouse, we recommend that employers contact their employment counsel for guidance to ensure that their leave policies are legally sound.

Our thoughts and prayers are with those on the east coast who are attempting to return to some sense of normalcy in the wake of the devastation left behind by Hurricane Sandy. 

Natural disasters like Sandy raise a host of issues for employers: how do you pay your employees during during suspended operations?  Whether and to what extent should health benefits and other benefits be offered? 

The aftermath of the hurricane also raises questions about an employer's obligation to provide a leave of absence to employees under laws such as the Family and Medical Leave Act.  Awhile back, I covered this question, so I refer you that post for a more detailed analysis of an employee's right to take FMLA during a natural disaster and whether the disaster itself could cause a serious health condition requiring FMLA leave. 

However, it's worth pointing out again a few general points to consider as we're confronted with natural disasters like Hurricane Sandy:

• Keep in mind that the FMLA does not, in itself, require employers to give employees time off to attend to personal matters arising out of a natural disaster, such as cleaning a flood-damaged basement, salvaging belongings, or searching for missing relatives.
• However, an employee would qualify for FMLA leave when, as a result of a natural disaster, the employee suffers a physical or mental illness or injury that meets the definition of a "serious health condition" and renders them unable to perform their job, or the employee is required to care for a spouse, child or parent with a serious health condition who is affected by the natural disaster.  Some examples might include the following: 1) as a result of the natural disaster, an employee's chronic condition (such as stress, anxiety or soaring blood pressure) flares up, rendering them unable to perform their job.  Where the medical certification supports the need for leave as a result of the natural disaster, FMLA leave is in play; or 2) an employee is required to care for a family member with a serious health condition for a reason connected with the natural disaster.  Take, for instance, an employee's parent who suffers from diabetes.  If the event took out power to the parent's home, the employee may need to help administer the parent's medication, which must be refrigerated.  Similarly, the employee may need to assist a family member when his/her medical equipment is not operating because of a power outage.
• Could the Hurricane actually cause a serious health condition requiring time away from work?  See my answer here.

Where an employee is requesting leave as a result of the natural disaster, employers should obtain as much information as possible from the employee to determine whether the absence qualifies as protected leave.  Where there is doubt, employers should provide the requisite FMLA paperwork and allow the employee to provide the necessary information to support FMLA leave.  (A previous FMLA podcast of ours covers how an employer should respond to a request for FMLA leave.  It might be helpful here.)

Also, employers should ensure that medical certification is sufficient to cover the absence at issue.  Where more information is required, employers must follow up with an employee to obtain the information necessary to designate the absence as FMLA leave.  Moreover, when an employer has reason to doubt the reasons for FMLA leave, they have the right to seek a second opinion to ensure FMLA leave is appropriate.

Q:  One of our employees will be absent for a serious health condition.  However, the employee prefers to use his accrued sick days instead of FMLA leave.  He has enough sick time to cover the absence.  In this situation, can the employee choose not to take FMLA leave, either because he has not specifically asked for FMLA leave or because he simply does not want to use FMLA leave?

A:  This is one of the most common questions I am asked in my practice, and it is due largely to the grand confusion caused by the Family and Medical Leave Act.  There actually are several sub-questions contained in the nugget above, and I answer them below.

1.  Does an employee specifically have to use the letters F-M-L-A when requesting leave protected under the Act?  Heck no!  Why?  The U.S. Department of Labor says so.  In its FAQs (pdf) on the FMLA, the DOL specifically states that when "an employee seeks leave for the first time for a FMLA-qualifying reason, the employee does not need to specifically assert his or her rights under FMLA, or even mention FMLA."  Rather, the employee need only provide “sufficient information” to make the employer aware of the possible need for FMLA leave.  Note: After the employer has provided FMLA leave for this reason, however, the DOL tells us that "the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave."

Thus, it becomes critical that HR professionals and supervisors fielding the call-offs from employees be trained and in a position to identify situations where the employee has put you on notice of the need for FMLA leave.

2.  If the employee qualifies for FMLA leave, can an employer make the employee use FMLA leave, even if the employee does not want to use it?  Do not let your employees sweet-talk, bamboozle or bully you into not counting an absence as FMLA leave where the leave of absence is taken for an FMLA-qualifying reason.  Take it from the regulations themselves: 

The employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of the designation to the employee . . . When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances.  29 CFR § 825.300(d)

The employer's obligations under the FMLA are clear: once it has enough information to determine whether the leave is being taken for an FMLA-qualifying reason, the employer must notify the employee as to whether the leave will be designated and counted as FMLA leave.  In other words, the employer has an obligation to designate leave as FMLA-qualifying as soon as the absence becomes an FMLA-qualifying event.  Employees do not have the right to choose when they take FMLA leave.  As soon as the leave of absence qualifies as FMLA leave, it should be designated as such -- regardless of whether the employee wants FMLA to apply. 

Failing to designate an absence as FMLA leave can have quite a negative impact on an employer's operations.  For example, if you fail to designate an employee's 10-week absence as FMLA leave (when it rightfully qualifies as such), but instead allow them to utilize accrued sick leave from their sick bank, you effectively have allowed the employee leave that they otherwise are not entitled to by law.  Although they will have exhausted 10 weeks of sick leave, they still have up to 12 weeks of FMLA leave available to them (instead of two weeks) because you did not designate the 10-week absence as FMLA leave.

3.  Can an employer require paid leave to run at the same time as FMLA leave?  Here, the employer's policy governs.  If the policy requires any accrued paid leave to run concurrently with FMLA leave, then an employer can require both FMLA leave and paid leave to run at the same time.  29 CFR § 825.207(a).  In the absence of such a policy, however, the employee can decide whether to use paid leave in conjunction with FMLA leave. 

In this situation, you run into the same troubled situation identified in Section 2 above -- the employee can stack paid leave and FMLA leave on top of each other, resulting in more leave than the employee legally is entitled to.  If your policy currently does not require paid leave to run concurrently with FMLA leave, discuss this with employment counsel to ensure your policy is consistent with your business objectives.  The money you save in the long run will be well worth the advice.

Q: Can an Employer Deny FMLA Leave to An Employee Who Is Not Yet Eligible to Take Leave?

A.  It depends, particularly after a federal appellate court handed down a ruling on this very issue last week.

The underlying story is straightforward: On October 5, 2008, Kathryn Pereda began working for Brookdale, which operates senior living facilities in Florida.  In June 2009, Pereda informed her employer that she was pregnant and would need FMLA leave after the birth of her child in November 2009.  However, in September 2009, about 11 months after her hire, Brookdale terminated Pereda's employment.

Pereda thereafter filed suit, claiming that the employer violated the Family and Medical Leave Act when it: 1) denied her FMLA leave (interference); and 2) terminated her for exercising her right to take FMLA leave (retaliation). 

The Court grappled with whether an employee who is not yet eligible for leave (because she had not worked for Brookdale for the requisite 12 months) could advance an FMLA interference claim.  For the Court, the answer was quite clear: Yes, she can.  In answering the question, the Court first looked to the regulation regarding eligibility: 

"The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start." 29 C.F.R. § 825.110(d).  

So, the answer is easy enough: when assessing an employee's eligibility under the FMLA, employers should make the calculation not as of the date of the request, but as of the date the leave is to begin.  If an employer terminates the employee “in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible,” the employee could advance an FMLA interference claim.  Pereda v. Brookdale Senior Living Communities (pdf)

Insights for Employers

There are several takeaways for employers on this issue: 

1. Keep in mind that the FMLA requires a 30-day notice for foreseeable leave.  This is particularly true for the birth of a child.  An employee who reports a future need for FMLA leave (even though they are not yet eligible) likely will be protected by the FMLA if the employee would be eligible by the time the leave is to begin.
2. A gentle reminder -- don't treat your employee differently after the leave request has been made.  According to Pereda above, she claims to have been harassed, disciplined for attending prenatal appointments (an FMLA no-no!), and inappropriately placed on a performance improvement plan.  Of course, an employer can and should insist that their employees meet legitimate performance expectations, but retaliating against the employee after she requests leave not only violates the FMLA, it results in a dejected employee who will have no desire to work for you again.
3. Note: If an employer grants leave before the employee becomes eligible under the FMLA, any leave taken in the first year cannot be counted against the employee's FMLA allotment.  See my prior post on this subject.
4. Eric Meyer of The Employer Handbook points out several other lessons from Pereda case that are worth reviewing.

Q. We provide our employees “non-FMLA” leave after they have worked for us for six months. They are given up to six weeks off during that time if it can be certified by a physician.  Since these employees are not eligible for FMLA leave at this point, can we credit the time they took off against their allotment for the following FMLA year as soon as they become eligible for FMLA leave? 

A.  First of all, good for you for offering this benefit to your employees.  However, the Department of Labor is not going to give you a big pat on the back.  In the FMLA regulations, it is clear (if it wasn't before) that an employer cannot credit leave given in the first year of employment against an employee's FMLA allotment once he or she becomes eligible for FMLA leave.  This is true even if the employee otherwise suffered from a serious health condition that would have been covered by the FMLA had he or she otherwise been eligible.  This situation is covered, in part, by the following regulation:

The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start.  An employee may be on “non-FMLA leave” at the time he or she meets the eligibility requirements, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be “FMLA leave.”  29 CFR 825.110(d) (emphasis added)

As the regulation makes clear, a leave of absence can only be designated as FMLA leave after the employee meets eligibility requirements.  This situation is covered even more explicitly in the preamble to the FMLA regulations, which I provide here.   In the preamble, the DOL states:

...any leave that employers voluntarily provide before an employee attains eligibility under the FMLA is not FMLA leave. Therefore, the FMLA protections do not apply to such leave, and employers may apply their normal policies to such leave. Employers may not, however, count any such non-FMLA leave toward the employee’s 12-week FMLA entitlement.

Q. We terminated an employee who has been reinstated by an arbitrator with full back pay.  Now, he has requested FMLA leave.  Are we obligated to provide leave even though he has not worked 1,250 hours in the previous 12 months?

A.  When determining whether an employee has worked the requisite 1,250 hours in the previous 12 months to be eligible for leave under the Family and Medical Leave Act, an employer must account for hours actually worked by the employee within the meaning of the Fair Labor Standards Act (FLSA). 29 CFR § 825.110(c).  The issue here is whether an employer must treat the back pay award as the equivalent of "hours worked."  

This issue even has the courts conflicted.  In Plumley v. Southern Container, Inc., the First Circuit Court of Appeals ruled that several months of back pay awarded to an employee who was reinstated after successfully grieving his termination does not count towards the 1,250-hour requirement.  The court found that hours worked:

"include only those hours actually worked in the service and at the gain of the employer,” and not hours for which a wrongfully-discharged employee was compensated in the form of back pay pursuant to an arbitral award.

However, the Sixth Circuit Court of Appeals in Ricco v. Potter (pdf) held precisely the opposite.  Where an employee has been wrongfully terminated and is reinstated with back pay, the court held that an employer is obligated to to treat the period of time covered by the back pay as "hours worked" for purposes of FMLA eligibility.  In short, the court reasoned that an employee should be credited for the hours that he wanted to work but was unlawfully prevented from doing so.  Thus, under Ricco, if the back pay period provides the hours necessary to meet the 1,250-hour requirement, and the employee is otherwise eligible, he is entitled to FMLA leave. 

From an anecdotal standpoint, I find that most employers tend to follow the Ricco holding, since the risk of following Plumley clearly could be more costly in light of the split in the appellate courts.  Interestingly, the courts have not addressed grievances that are settled and which result in some amount of back pay awarded to the employee.  Here, it seems as though the employer has a much stronger argument that the time covered by the back pay does not count as "hours worked," since there is no finding of wrongful termination against the employer, and the parties otherwise have compromised their positions to achieve resolution.  In this scenario, my sense is that a court would be far less likely to count this period of time toward an employee's 1,250 hours worked.

On June 27, 2011, the United States Supreme Court agreed to review an FMLA case in which the Court will decide whether a State can be sued under the Family and Medical Leave Act where the employee is seeking leave due to his or her own serious health condition.  In lawyer-speak, the question specifically involves "whether Congress constitutionally abrogated states’ 11th Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act."  Although the issue may at first blush appear to be rather dry and inconsequential to the FMLA practitioner, the decision clearly will impact whether a State can be sued under the FMLA where the issue involves one of "self-care" under the Act.  Coleman v. Maryland Court of Appeals (pdf).

In Coleman, the plaintiff was employed by the Maryland Court of Appeals and sought FMLA leave to care for his own serious health condition.  He later claimed his FMLA leave was denied in retaliation for his complaints of wrongdoing in his office.  In a decision that only an FMLA geek like me may find fascinating, the Fourth Circuit Court of Appeals ruled that Congress did not validly strip states of their "immunity" to claims under the FMLA in this specific instance.  As a result, the appellate court upheld the dismissal of the lawsuit.

The cases hinges on the interpretation of the 11th Amendment to the U.S. Constitution, which bars claims in federal court against an unconsenting state and any governmental units that are arms of the state unless Congress has abrogated the immunity.  In order to do so, Congress must unequivocally declare its intent to abrogate and must act pursuant to a valid exercise of its power.  The high court now will make the final decision. 

Public employers should take note of and follow this case, which will be considered by the Court in its next term.  The parties' briefs in the case before the Court can be found at the SCOTUSblog. 

Here's a shout out to all the dads out there who have a leg up on major league baseball players in at least one area -- paternity leave. 

Last week, National Public Radio reported that Texas Rangers pitcher Colby Lewis became Major League Baseball's first player to exercise a new right under the parties' collective bargaining agreement -- the opportunity to take paternity leave in conjunction with the birth of his child.  Under the terms of the CBA, MLB players now are allowed to take 24 to 72 hours off due to the birth of their children. (NBC Sports reported shortly afterward that another player, Washington Nationals' shortstop Ian Desmond, also was preparing himself to take on the roll of "coach" at the side of his wife, who was about to give birth to their first child.)

Not too much to ask for a little bonding time between father and child, don't you think?  Sadly for Lewis, some of the Texas Rangers faithful believe that the 24 to 72 hours provided to bond with your very own newborn is just a tad too much for a baseball pitcher who gets paid millions to play a game he loves.  Cried Richie Whitt, a Dallas Observer baseball beat writer: 

Baseball players are paid millions to play baseball. If that means 'scheduling' births so they occur in the off-season, then so be it. Of the 365 days in a year, starting pitchers "work" maybe 40 of them, counting spring training and playoffs.

If it was a first child, maybe. But a second child causing a player to miss a game? Ludicrous.

Even Rangers president Nolan Ryan acknowledged that he was trying to acclimate himself to the new rule, commenting on ESPN sports radio that a leave of absence to be present for the birth of a child was uncommon in his day:

In those days they never allowed you to go home for a child to be born. It’s just something you heard about if it happened during the season.  'By the way, you have a new son or daughter,' a laughing Ryan said, referring to what your wife would say to you over the phone.

Others, such as NBC Sports' Craig Calcaterra, came to Lewis' aid, suggesting (appropriately) that the short time away for Lewis and other MLB dads to bond with their newborn child clearly was a "good" reason to be away.

A mere 24 to 72 hours to bond with my kid?  Wow.  Just when I think I have it rough as an attorney in private practice, I realize I must be living on easy street when compared to guys like Colby Lewis.  Ummmm...Right?