A plaintiff who thought she had the swine flu, and thought she had an ADA claim when she was terminated after four days of absence for the flu, had neither. Lewis v. Florida Default Law Group,P.L. (M.D. FL Sept. 15, 2011).

The plaintiff was diagnosed with “seasonal flu” but “understood” she was diagnosed with the H1NI virus, the swine flu.  Her doctor testified that he never diagnosed her with H1N1. When she returned to work after the four days, the company terminated her because her absences were “just too much.”  She had “substantial attendance issues” prior to these four days, according to the court.

The plaintiff claimed she was terminated because she had or was perceived as having been infected with the H1N1 virus. The court rejected plaintiff’s claim that her flu, whether seasonal or swine, was an actual disability, noting that even if her symptoms were impairments, they were of short duration and, as a result, did not substantially limit any major life activity. 

The court also dismissed her “regarded as” claim because her impairments were transitory and minor. The symptoms of the 2009 H1N1 virus included fever, cough, sore throat, runny or stuffy nose, body aches, headache, chills, fatigue and, for some, vomiting and diarrhea, “specifically the type of impairments that the ‘transitory and minor’ exception’ was intended to cover,” the court added.

Whether particular flu strains are disabilities under the ADA has been an intriguing issue since the avian and swine flu outbreaks a few years ago.  The Lewis case is one of the few decisions to do this analysis.