Employers have been justifiably concerned about the recent significant expansion of employee’s rights under the Americans with Disabilities Act (See EEOC fact sheet here). However, all hope may not be lost. As employees return from their exotic holiday travel, firing them based on pandemic flu panic may yet be legal.

This week, a Minnesota Federal Judge issued an order considering:

the interesting question of whether someone who is regarded as having an impairment that in fact is no more serious than seasonal flu — but that, for a period of time, is  widely (although mistakenly) perceived as being far more dangerous — is “disabled” for purposes of the ADA….     

According to Judge Patrick Schiltz’s opinion, in 2009 the plaintiff had traveled to Mexico because of a family emergency. Upon his return, he was informed by his employer that he was fired because he had not reported his absence properly and because of possible health issues related to his return to work. The employer was concerned about the H1N1 “Swine Flu” because of media reports and a CDC recommendation that Americans avoid travel to Mexico.

The subsequent lawsuit claimed that the employer regarded the plaintiff as disabled, even though he wasn’t. To prove such a “regarded as” claim under the ADA, the plaintiff must show that the employer mistakenly believed he had an impairment, but, importantly, this belief may not relate to an impairment that is “transitory and minor.”  The employer ultimately prevailed because:

whether an impairment is transitory and minor is an objective inquiry. The subjective beliefs of the employer are irrelevant… swine flu as it is now understood is…“minor” for purposes of the ADA, in the sense that it has not turned out to be more serious than seasonal flu, and seasonal flu is undoubtedly “transitory and minor” for purposes of the ADA.

While we can’t suggest that all actions based on rational or irrational pandemic fears are lawful, the decision may be a small measure of solace for employers this holiday season.

It’s important to remember, though, that however great is to win in litigation, it’s even better to avoid the lawsuit in the first place. While not all lawsuits are preventable, clear, appropriate and lawful communication is the best preventive medicine for “regarded as” claims. As with many employment situations, and particularly those relating to illness and injuries, an ounce of prevention is worth a pound of cure.