Protected Work Environment Definition

CCK Law: Our Vital Role in Veterans Law

Total disability based on individual unemployability (TDIU) is awarded to veterans who are unable to secure and maintain substantially gainful employment as a result of their service-connected conditions.  However, there are certain circumstances in which a veteran can receive TDIU benefits even when they are employed, as long as that employment is considered to be “marginal.”  One way to show marginal employment is to demonstrate to VA that you work in a “protected work environment.”

What is a Protected Work Environment?

While VA has not explicitly defined the phrase protected work environment, we are able to provide a general meaning based upon decisions from the Court of Appeals for Veterans Claims. Generally speaking, a protected work environment is one in which the employer makes special and significant accommodations for the veteran without reducing their earnings or benefits.  VA typically considers the following factors when determining whether a veteran’s job constitutes a protected work environment:

• The veteran is excused from critical functions of their job due to the limitations caused by his or her service-connected 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 service-connected traumatic brain injury who works on an assembly line might produce half as many things that another worker would produce because it is harder for them to concentrate.  If the veteran receives the same compensation and benefits as the person without the disability, then their work environment might be considered “protected.”
• The veteran is less reliable than other workers. Another example may involve a veteran with posttraumatic stress disorder (PTSD) who has trouble sleeping due to their PTSD and often shows up to work very late and sometimes not at all.  However, his employer does not deduct pay for the days the veteran misses work or comes in late because he knows the veteran’s actions are a result of their service-connected disability.
• The employer does not penalize the veteran for behavioral issues and/or mistakes related to their service-connected disability. Some conditions may cause people to have trouble with interpersonal relationships or lead to unpredictable behavior.  A work environment where the veteran’s employers and co-workers accommodate these types of limitations might be considered “protected,” especially if it could be argued that the behaviors would not be tolerated by the typical employer.

It is important to note that whether or not a work environment is considered “protected” is established on a facts-found basis.  This means that VA will make a judgment based on the facts in each individual case.