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Protected Work Environment (AKA Sheltered Work Environment) for TDIU: What does it actually mean?

If you are TDIU (Total Disability based on Individual Unemployability or IU), you are limited in how much income you can have from employment.
That limit is called "marginal employment" and is the Federal Poverty Level for a single person and is currently $13,300/yr or $1,118/mo GROSS.
Marginal employment comes into play when a veteran is seeking 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 and benefits, 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 2020, $13,300 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.”
Some 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”, 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 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.” 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.
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