It is now officially flu season. One may be unlucky enough to contract a simple seasonal flu (jnfluenza A), or really unlucky enough to contract a more serious flu such as the swine flu (from the H1N1 virus).

But is “the flu” a disabling condition under the ADA?

One federal court in Florida found that having the flu is not a disability. In Lewis v. Florida Default Law Group, the plaintiff employee was diagnosed with a seasonal flu but believed she had the H1N1 virus and so informed her employer. When she was terminated for excessive absences, she sued claiming that the real reason for her termination was that she had an “actual disability” and/or that she was regarded by her employer as having a disability.     

The Court rejected both claims and looked to the ADA and its amendments for the answer. The Court held that “the flu,” whether it was seasonal or swine, was not an actual disability since it is of short duration, and that although short duration conditions can be a disability if severe enough, the flu is nonetheless not of the severity described in the amendments. Nor, the court found, is it permanent but  “episodic,” such as cancer or epilepsy.

As to whether the employee was “regarded” by her employer as having a disability, the court similarly held that the employee’s objectively transitory and minor condition fell within an exception under the amendments, and therefore could not be “regarded as” an impairment.