Introduction to Marginal Employment and Protected or Sheltered Work Environments
In order to gain approval for Total Disability Individual Unemployability (TDIU) benefits claims, a veteran is required to demonstrate that they are unable to secure or follow a substantially gainful occupation as a result of their service-connected disabilities.
Substantially Gainful Employment is defined as SGA, Substantial Gainful Activity, an amount of earnings that is at or above the federal poverty threshold for one person. Anything less than this is known as Marginal Employment.
Many veterans are forced to work part time while seeking a TDIU or IU determination from the VA. Unfortunately in some cases the VA will use this to classify a veteran’s work situation as a choice rather than a circumstance that flows from their service connected disabilities. This is where having the representation of a skilled VA disability compensation lawyer comes in.
The fact is, often the physically and psychologically stressful nature of full-time employment is why veterans are unable to obtain SGA or Substantially Gainful Employment. Because of this some employers provide “accommodations” in the form of protected or sheltered work environments.
For example, some employers will tolerate less reliability or productivity from veterans. Maybe a veteran employee is able to leave early or take unscheduled breaks because of chronic headaches or panic attacks from their service connected post-traumatic stress disorder. Or if you’re supposed to put out 50 items in a given hour, and most of the rest of the workforce puts out about 50 items in that hour, but you’re only putting out about 30, 35, and your employer doesn’t hold that against you. That’s another good example of a protected or a sheltered work environment.
Examples of Marginal Employment and Protected or Sheltered Work Environments
Some employers allow for altered work requirements and more leniencies. For example, if your job description involves manual labor, perhaps carrying heavy items from point A to point B. Let’s say Bob has to carry these items from A to B, but veteran employee Dan is not required to because of his service connected degenerative disk disease in his lower back. That would be considered an altered work requirement based on his veteran status.
Sometimes veterans have service connected mental health disorders. As a result employers realize they have difficulty coping with the stresses of the workplace and on occasion they lash out either unknowingly, or unwittingly. When this happens, employers will look past some of these transgressions because they understand what the veteran has experienced, perhaps in combat or in a situation that transpired while they were in the military. They may allow the veteran to return the next day, take the rest of the afternoon off, or come back tomorrow. This is another great example of a protected or a sheltered work environment.
Self & Family Employment Does Not Bar Vets From Individual Unemployability Benefits
Self-employment and family employment are other examples of a protected, sheltered work environments. Family members are uniquely positioned to understand what you as a veteran are going through. If you have confided in people when you return from your time in service about things that have affected you about your declining health, it’s likely to be family members. That’s a very unique protected situation.
It’s important to keep in mind that the main question that you need to be able to answer when it comes to marginal or protected, sheltered work environments is why these service connected conditions prevent you from substantial gainful employment in a competitive environment? That will be one of the questions that the VA is going to ask whenever they’re determining your IU status. Is your unemployability at SGA level due to your service-connected disabilities? With this in mind… You want to make sure that you can obtain some sort of a statement to that effect from the family member that you work for a couple of days a week.
Exploring Marginal Employment Further
There are strict VA Unemployability income limits you must fall under to obtain TDIU Benefits under the marginal employment section. Marginal employment generally shall be deemed to exist when a veteran’s current income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment is considered income below the U.S. poverty rate, which in 2017 is anything under $12,488 per year.
Marginal Employment Examples:
- Self Employment: Many disabled veterans who qualify meet the definition of marginal employment are self employed. They take a few odd jobs here and there. Many disabled veterans may do seasonal yard work or mow yards. If you are self employed and making under the yearly poverty rate because of your service-connected disabilities, you may be eligible for TDIU benefits claims.
- Fast Food: Many disabled veterans work jobs at fast food restaurants for minimum wage. Many of these disabled veterans cannot work many hours, only picking up a few shifts here and there when their service-connected disabilities allow them to work. If this describes your marginal employment and you are under the poverty rate, applying for Individual Unemployability benefits may be in your best interest.
- Handyman: Lots of disabled veterans were skilled laborers between their service and the onset of their disability. Disabled veterans that take handyman jobs and earn under the federal poverty rate may be eligible for TDIU benefits. You will need to prove your service-connected disabilities are the source of your marginal employment for TDIU benefits.
- Non-Profits: Disabled veterans often work at non-profits, after all, serving others is a large part of any veteran’s life. Disabled veterans that work at non-profits are often paid minimum wage for only a few hours here and there. The rest of the disabled veteran’s time at the non-profit is often considered volunteer work. Non-profits will often bend-over-backwards to allow a veteran to work there. That means the disabled veteran can often come and go as they please, but don’t make much money. If you work at a non-profit and make under the federal poverty rate, you may fit the marginal employment guidelines for Individual Unemployability benefit pay.
Understanding Protected and Sheltered Work Environments
A disabled veteran’s occupation may be considered a protected or sheltered work environment because they are excused from critical functions of the job. Disabled veterans who work at protected or sheltered work environments generally have special accommodations. The employer under this situation does not penalize the veteran for their accommodations due to service-connected disabilities. There is no income limit under the protected or sheltered work environment rules. Each situation is different and the VA is going to examine every claim under unique circumstances.
Examples of Protected and Sheltered Work Environments:
- Family Employers: Many family members will employ disabled veterans simply because they are family. The family member who owns and operates the family business will allow the disabled veteran to come and go at the veteran’s discretion. The veteran may be given accommodations so they can sit or stand whenever they need. The family owned business may allow the disabled veteran to operate in a manner that other businesses would not allow. Veterans that work at protected or sheltered work environments in family businesses because of service-connected disabilities, may be eligible for Individual Unemployability benefits.
- Previous Employers: Previous employers will often offer disabled veterans protected or sheltered work environments. A long time employee may be offered a deal where they can come and go as they please because of their service-connected conditions. The disabled veteran may also be allowed not to show up whenever their service-connected disabilities affect the veteran severely. Previous employers often give disabled veterans the freedom that most workplaces would not allow. If your protected or sheltered work environment falls under this category from service-connected disabilities, you might be eligible for TDIU benefits.
FAQ: TDIU Claims, Marginal Employment, and Protected or Sheltered Work Environments
Does working prevent me from getting TDIU benefits?
No. But we do warn you, it can be hard to prove to the VA that you are unable to work from service-connected disabilities if you are working. Remember, you are trying to prove to the VA that you can’t work from service-connected disabilities. So, if you are working, the VA may use that as an argument against your claim.
Is the VA going to consider my assets for TDIU benefits?
No. The VA is not going to consider your assets for Total Disability Individual Unemployability benefits claims. The VA is going to consider your current income, your accommodations at work, and the severity of your service-connected disabilities.
Is TDIU the same as a 100% VA rating?
No. There is a difference between Individual Unemployability and a 100% rating. Veterans get these two benefits confused because they pay the same. Veterans will be awarded Individual Unemployability or a 100% rating for very different reasons. Individual Unemployability is awarded based upon your rating and ability to keep or obtain meaningful employment. While a 100% VA rating is based solely upon the severity of your service-connected disabilities.
Can I get SSDI and TDIU benefits at the same time?
Yes. Veterans with service-connected disabilities can receive SSDI and TDIU benefits at the same time. Please know that each claim will be awarded for very different reasons. The Social Security Administration (SSA) and the VA will examine your disabilities in very different manners. Many veterans are awarded one benefit and denied the other. We always suggest veterans apply for both because SSDI benefits are often decided much quicker than TDIU benefits.
What if I plan on returning to work full time?
We generally do not suggest veterans apply for TDIU benefits if they plan on returning to work full time in the near future. The VA moves slow and it is likely you receive a Rating Decision after you begin working. If this happens, the VA may cut your benefits. In other words, TDIU is generally not for veterans with temporary leaves from work. TDIU is really designed to help veterans that are unable for keep or obtain gainful employment for extended periods of time.
How do I let the VA know I want TDIU benefits?
Veterans wishing to obtain TDIU benefits should file a VA Individual Unemployability Form 21-8940. On this form, you will need to describe your previous work. The VA will also want to know about your schooling and vocational training. The VA is going to consider your entire employment background and current service-connected disabilities for TDIU benefits.
How long does a TDIU claim take to be approved?
The VA moves very slow. The TDIU timeline can take years if you enter the appeals process. But don’t let that discourage you from trying to obtain the benefits you deserve. The BVA remands decisions back to the VARO which can add lots of time to TDIU claims. Very few veterans will be able to expedite VA disability claims due to financial hardship, terminal illness, homelessness, or advanced age. The advice we give to all clients is this: hang in there, be patient, and get qualified assistance with your TDIU claim.
Talk With Woods & Woods About Your TDIU Claim For Free
Have more questions about marginal employment and protected or sheltered work environments? Give Woods & Woods a call. We have built a nationwide legal network of lawyers that help veterans with marginal employment and protected or sheltered work environment TDIU claims. Proving marginal employment and protected or sheltered work environment TDIU claims can be difficult to do on your own. We highly recommend you at least talk with a VA certified disability attorney before filing your claim.
Your Individual Unemployability lawyer will only charge a fee if your appeal is successful. If your appeal is not successful, you pay your veterans unemployability lawyer nothing. The TDIU benefits denial lawyers at Woods & Woods have successfully represented thousands of veterans through difficult periods in their lives.
The veterans disability benefits lawyers at Woods & Woods always offer free legal consultations to any veteran, family member, or caretaker. We will talk with you about your marginal employment and protected or sheltered work environment TDIU claim and find out how to best help you. Depending upon your circumstances, we may even recommend a partner law firm that focuses on your type of TDIU claim. Our mission is to get as many veterans the help they need after a disability changes their life.