In recent discussions, a number of employers have advised us that they are providing the Department of Labor’s (DOL) Family and Medical Leave Act (FMLA) medical certification forms to employees who have disclosed medical issues in situations where those employees are not eligible for FMLA leave (typically due to length of employment or the size of the location where the employee works). The employers say that they are familiar with the DOL form and that it asks the physician questions that are useful in determining whether the employee can be accommodated under the Americans with Disabilities Act (ADA).

We have cautioned employers over risks that may accompany the use of the DOL form with employees not entitled to FMLA leave. A number of federal courts have said that employers cannot confer statutory FMLA legal rights on employees who are not covered under the law. However, in some cases, those employees have been allowed to sue the employer on an estoppel theory. This means that the employer cannot avoid liability for FMLA rights if it told the employee that they were taking FMLA leave.

Use of the DOL form could be used as evidence by an employee that the employer represented to them that they qualified for FMLA leave. The employer could counter this claim by providing other written documentation to the employee directly stating that they do not qualify for FMLA leave and that the medical information is requested for ADA accommodation analysis purposes. However, the employer may be better served by forgoing the DOL FMLA form and instead using one designed for ADA informational purposes. The employer can ask many of the same questions contained in the DOL form without running the risk of confusion over the employee’s leave eligibility status.