On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendments of 2008 (“ADAA”). These new provisions to the Americans with Disabilities Act (“ADA”) will take effect on January 1, 2009 and will likely have a significant impact on employers across the country.

Understanding the context of the changes requires a basic understanding of the ADA. Under Title I of the ADA, employers are prohibited from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training and other terms, conditions, and privileges. As to current employees, if a particular employee qualifies as “disabled” under the ADA and can still perform the essential job functions of the job in question, his or her employer must make a reasonable accommodation for that employer, unless such accommodation would impose an “undue hardship” on the operation of the employer’s business.

The key component which triggers ADA coverage is whether or not an individual meets the ADA’s definition of “disabled.” A person with a qualified disability must fall into one of the following categories:

• Has a physical or mental impairment that substantially limits one or more major life activities;
• Has a record of such an impairment; or
• Is regarded as having such impairment.

Whether an individual meets the definition of “disabled” has been the subject of much litigation. In the seminal case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, (2002), the Supreme Court reasoned that disability meant “substantially limited in performing, manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities tat are of central importance to most people’s lives.” Therefore, not being able to perform the variety of tasks associated with a specific job did not amount to a substantial limitation to a major life activity. Hence, the Court in Williams took a narrow view of the definition, and made it difficult for individuals to qualify as disabled under the ADA.

The clear Congressional intention with the amendments was to overrule the Courts holding in Williams and broaden the definition. Presumably, a more broad definition will lead to more individuals qualifying for protection under the ADA.

As to workers' compensation interplay, depending on the jurisdiction at issue, at the conclusion of a litigated workers’ compensation claim, the injured worker is assigned a disability rating. Before the amendments, an employer was insulated from an actionable ADA claim, despite this percentage of disability. There is no such guarantee in light of the amendments.

The best way to guard against potential ADA violations is to be proactive. In this regard, relative to WC claims, three (3) essential questions should be considered:

1. Does the employee meet the definition of disabled under the ADA?
2. If so, can the employee perform the essential job function?
3. Has the employee requested a reasonable accommodation?