The Equal Employment Opportunity Commission’s regulations implementing the ADA Amendments Act of 2008 are currently before the Office of Management and Budget for review prior to publication in proposed form later this year.  In adopting the rules, the EEOC failed to accept Congress’s invitation to establish by regulation what “substantial impairment” means.  To be protected under the ADA, an individual must have a substantial impairment of a major life activity.

In the ADAAA, Congress explicitly overruled the Supreme Court’s Williams decision, stating that it had set too high the bar for proving substantial impairment.  However, Congress declined to adopt a specific standard, leaving it to the EEOC and federal courts to determine.  With the EEOC declining to adopt a definition of substantial impairment through regulations, federal courts will be left to make individual decisions on this question.  How sick or injured does someone have to be to be considered disabled under the ADA?  How significantly does the major life activity have to be affected by the medical condition?

While this bar will not be set as high as was the case after Williams, litigants in ADA cases can be expected to continue to contest this definition, and employers may have a diminished but still possible opportunity to seek dismissal of ADA cases involving marginal medical conditions.