The company told the plaintiff he was being terminated because it “feared that he had contracted swine flu while in Mexico for his sister’s funeral.” For a time, swine flu had been declared a public health emergency and medical authorities feared the worst. We now know that the swine flu hospitality and mortality profile is very similar to the seasonal flu.
Can a plaintiff with a transitory and minor ailment who is mistakenly perceived as having a far more serious ailment bring a “perceived disability," aka, "regarded as” claim under the ADA? Citing the common sense principle—a principle somewhat at odds with the policy underlying the ADA’s “regarded as” theory–that “the question turns not on perception, but on reality,” the federal district court noted that the swine flu is both transitory and minor and granted summary judgment to the employer. Valez v. Minnesota Quarries, Inc., (D. MN. Dec. 10, 2012).