In our blog about working and receiving Unemployability, we outline how Veterans can continue to be employed while receiving the VA benefit called Total Disability due to Individual Disability (TDIU). We outline how to file for this claim in several blogs including, Tips for Filling out the VA 21-8940; as well as provide Veterans with a guide to what TDIU is and how to determine if one is eligible for Unemployability in our Unemployability Guide. One of the main things to know for Veterans who continue to work while filing for Unemployability is the rules concerning what is called “marginal employment.”
Marginal Employment is considered as “earned annual income that does not exceed the poverty threshold for one person as established by the US Department of Commerce, Bureau of the Census.” This means employment that pays at the level of, or below the standard poverty threshold based on the year you are applying as your effective date. For example, if a Veteran is applying for TDIU back to 2014, the Veteran would need to have made less than the poverty level in income for that year and the years after that that the Veteran continued to work. This is based on no dependents, whether the Veteran has any or not. If a Veteran exceeds the poverty threshold, he or she would not be eligible for VA benefits.
Sheltered Employment is the other type of marginal employment eligible for TDIU. Sheltered employment means that a Veteran is given concessions due to his or her service-connected disabilities that would not normally be given to other employees. This is something beyond what would be legally provided through ADAAA accommodations. For example, a veteran with TBI works for a company that specifically hires Veterans with disabilities. The company provides the veteran with an office and duties that afford limited interaction with other people. The veteran’s salary pays his bills, and is over the current poverty threshold. Because the veteran’s job has been tailored to his individual needs (limited interaction with other people), his job is considered to be sheltered, and therefore falls under “marginal employment.” The VA cannot consider this job as being substantially gainful employment, and must not use it against him in determining IU.
Proving Sheltered Employment
Proving sheltered employment can often be difficult. Veterans must show that not only that their disabilities keeping them from working in sustainable employment, they must also show that the employment they do hold is sheltered by providing evidence in the form of documentation from their employer stating what accommodations have been made for the Veteran and verifying that these accommodations would not be made for other employees. As long as the accommodations are not considered “reasonable” and do not violate the ADAAA, they are not required to be provided to all employees. For example, providing someone with an ergonomic chair for a back injury would be an ADAAA accommodation and something reasonable to provide to all employees who had a back injury. A small business conducted a fundraiser to raise money to build a special entryway into their office for a Veteran in a wheelchair so he could have his old job back when he returned from service. This would not be considered a “reasonable accommodation” per the ADAAA as they normally could not afford to provide such types of accommodations, so therefore this would be considered sheltered employment.
Differences between Sheltered Employment and Reasonable Accommodations
Reasonable accommodations per the Americans with Disabilities Act Amended Act provides for accommodations that meet specific criteria per federal law. These criteria are:
- Dignity: Persons must be accommodated in a way that most respects their dignity, including their privacy, confidentiality, comfort, and autonomy.
- Individualization: There is no set formula for accommodation. Each person’s needs are unique and must be considered afresh when an accommodation request is made. A solution may meet one person’s requirements but not another’s, although many accommodations will benefit many other people with similar needs.
- Inclusion: Achieving integration and full participation requires barrier-free and inclusive design and removing existing barriers. Preventing and removing barriers means all persons should have access to their environment and face the same duties and requirements with dignity and without impediment.
Sheltered employment does not have to meet these requirements. There are three ways to determine if employment is considered sheltered:
- If the Veteran were to leave the position, the accommodations would no longer be available to any other employee, in other words, they were specific to just the Veteran;
- The business plans to continue to accommodate the position and hire someone else similarly disabled;
- The business plans to eliminate the position completely if the Veteran was no longer working at the business.
Family owned businesses, businesses that specifically hire disabled veterans, non-profits who work with disabled veterans in “sheltered workshops” are usually where you are most likely to find marginal employment situations. Legal representatives or a vocational rehabilitation counselor can advise on whether the employment can be considered sheltered. However, remember, falsely reporting employment income or accommodations as sheltered is a federal offense and can lead to criminal charges, so if a Veteran is filing for TDIU and is employed, make sure they are getting good counsel.
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