Protected Work Environment for TDIU: What Does It Actually Mean?

CCK Law: Our Vital Role in Veterans Law

TDIU is a benefit that is awarded for veterans who cannot work due to their service connected conditions. But there are a number of circumstances in which a veteran can receive TDIU even when employed. VA may still grant TDIU benefits to an employed veteran if that veteran’s work is considered “marginal employment.” One way to show marginal employment is to give VA evidence that you work in a “protected work environment.” But does that actually mean?

The short answer: At CCK, we believe that a protected work environment exists if the veteran is being paid for a job that he really isn’t doing, or isn’t doing as fast or as reliably as other workers.  (See below.) But VA has not helped, as it has not given clear guidance on what “protected work environment” means. For the longer (and more helpful) answer… read on!

Marginal Employment

Marginal employment comes into play when a veteran is seeking so-called TDIU, a VA disability benefit available to veterans whose service-connected disabilities make them unable to work.  TDIU compensates veterans at the 100% disability rating amount, even if their total combined disability rating is less than 100%.

When it comes to TDIU, VA considers a veteran’s employment “marginal” if the veteran earns less than the federal poverty threshold for one person (in 2017, $12,060 per year for all states other than Alaska and Hawaii). This comparison to the U.S. poverty threshold makes establishing “marginal employment” relatively straightforward and objective. But VA also acknowledges that some employers will make major “accommodations” for veterans with disabilities while continuing to pay them above the poverty threshold, allowing those veterans to maintain employment when they would otherwise (without the accommodations) be unable to work. VA refers to situations like this as “employment in a protected environment” or, more simply, “protected work environment.”

What is a Protected Work Environment, according to VA?

As mentioned, VA has not specifically defined what it actually means to work in a protected environment. But the law and past experience gives us a picture of what VA may look for in these cases, even if that picture is a little blurry.

Generally, a protected work environment is one in which the employer makes special (and significant) accommodations for the veteran without reducing his/her earnings or benefits. But what factors does VA consider when determining whether the work environment is protected?

Here’s what we know for sure:

• A work environment can still be considered “protected” if the veteran earns a salary that is above the poverty threshold or even if he/she works full-time. Though “marginal employment” is generally established by comparing a veteran’s income-level to the federal poverty threshold, it can also be established through showing that higher-paid the work environment is “protected.” So having a low income is not a requirement for establishing marginal employment if the veteran works in a protected environment. That kind of an environment exists when the employer excuses the veteran from performing some or all of the basic, or essential, duties of the job.
• Whether or not a work environment is considered “protected” is established on a facts-found Being established on a “facts-found basis” means that VA will make a judgment on the facts in each individual case. There is no blanket policy that recognizes certain types or work or certain accommodations as creating a protected environment. So, all the facts about the veteran’s disability (and how it affects his/her ability to work) as well as all the facts about the veteran’s job – especially the accommodations made for the veteran – will be considered in making a decision.
• Two examples of a protected work environment: a family business and a sheltered workshop. Though not all employment at a family business or sheltered workshop automatically qualifies as “protected work environment” (see “facts-found” bullet point above), these examples give us a better idea of what VA is looking for. These are examples of job environments in which the veteran is excused from the standard work requirements.

What is a Protected Work Environment, more generally?

There are a few things we’ve inferred about protected work environments from past VA decisions, Court/CAVC cases, etc. Generally, in protected work environments, a disabled veteran is paid the same or similar amount as other employees doing similar work and one or more of the following is true:

• The veteran is excused from critical functions of their job due to the limitations caused by his or her disability. The veteran employee may, for example, be allowed to skip meetings or trainings that other employees have to attend.
• The veteran is less productive than other workers. For example, a veteran with a traumatic brain injury (TBI) who works on an assembly line might produce half as many things that another worker would produce  in a day (because it is harder for her to concentrate). If the veteran receives the same pay and benefits as the person without a disability, then her work environment might be considered “protected.”
• The veteran is less reliable than other workers. Another example: A veteran who has PTSD works for his brother’s company. Because he has PTSD, the veteran has trouble sleeping and often shows up to work very late and sometimes not at all. But his brother (the employer) does not deduct pay for the days the veteran misses or comes in late because he knows his brother’s actions are the result of a disability.
• The employer does not penalize the veteran for behavioral issues and/or mistakes related to their disability. Some mental health and other conditions cause people to have trouble with interpersonal interactions or unpredictable behavior. Such conditions might make it easier to make mistakes on the job or forget to do things. A work environment where the veteran’s employer and co-workers accommodate these kinds of limitations might be considered “protected,” especially if it could be argued that the behaviors wouldn’t be tolerated by the typical employer.

NOTE: The type of work you do is not enough on its own to show a protected work environment, as defined by VA. If, for example, a veteran chose truck driving as his career specifically because he has PTSD and prefers to work alone, this does not count as a “protected work environment” unless the veteran is given special accommodations (for example, allowing him to drive fewer miles than other drivers, but not reducing the pay he receives or penalizing him for being less productive).

The above situations, of course, are not set rules for what counts as a “protected work environment.” But they can be used as guidelines for veterans who think they may qualify.

Potential Evidence for Protected Work Environment Claims

There is a wide range of potential evidence that could be used to show that a veteran is employed in a protected work environment. One key for these types of claims is a statement from your employer. The employer statement should include the specific accommodations made for you in the work place, duties you are excused from, examples of situations where exceptions have been made for you on the job, etc. It’s also important for the employer to tie each of these accommodations back to the effects your disability.  A statement from your fellow employees would also be important.

Additionally, you should include documentation of your salary or contract. If available and relevant to your case, you may want to include a record of your attendance. Similarly, documentation of interpersonal troubles or mistakes that were forgiven, could also be useful.

You may also want to include Social Security Administration descriptions of the typical duties involved in the type of work you do (or the role you have) or anything that would allow VA to see that there are widely accepted critical functions of your job that you’re excused from.  A copy of the employer’s own job description for the position can also be helpful.

Dear VA, Please Explain: CCK’s Court Win

As the result of a precedential decision, successfully argued by CCK at the Court of Appeals for Veterans’ Claims (CAVC), VA was recently ordered to either define “protected work environment” or create a list of factors for adjudicators to use. CCK argued that without a definition of “protected environment,” VA adjudicators could make decisions that result in different outcomes for veterans in similar situations, giving the appearance of arbitrary and unequal decision-making.

READ MORE about this veteran’s case and the CAVC’s binding decision here.