BP Union – Del Rio

The National Border Patrol Council (NBPC), working jointly with the National Treasury Employees Union (NTEU), signed the Employee Support Services Memorandum of Understanding (MOU) with Customs and Border Protection, designed to encourage employees to seek mental health treatment while protecting their jobs.

Historically, U.S. Border Patrol employees experiencing mental health issues have avoided seeking treatment because they were afraid of losing pay or even their job. In light of the number of suicides we have seen within CBP, this MOU allows employees who are considering getting treatment to come forward and get the help they need. As we prepare for an unprecedented surge of border crossings, we all need to be aware of this new resource available to us.

Below are some of the agreement’s highlights, though you are encouraged to read through the entire MOU.

• Employees will not be subjected to disciplinary or adverse actions, fitness for duty evaluations (FFDEs), and/or retaliation solely based on using mental health resources or notifying the agency that they are possibly experiencing mental health issues and are considering seeking treatment (Section 1.B).
  
  
• If an employee is experiencing mental health issues or conditions (e.g., suicidal ideation, PTSD, depression, anxiety, substance abuse), they will be granted a “safe harbor” from being referred for an FFDE while seeking and receiving treatment for up to 12 months. (Section 2.C).
  
  
• During those 12 months, the agency can ask for up to four status updates via the certificate of treatment, certifying only that an employee is receiving treatment, how long the clinician expects the care to take, and what work restrictions exist (Section 2.D).
  
  
• When someone first talks to a supervisor about their mental health, the agency can temporarily take away and hold onto their firearm, which does not automatically require the revocation of LE authority (Section 3.H).
  
  
• When someone’s law enforcement authority is revoked, they lose the ability to earn BPAPRA. However, under this MOU, “[t]emporary revocation of law enforcement authority/credentials in connection with seeking treatment for mental health will be carefully considered on a case-by-case basis, based on reasonable and articulate information available at the time that indicates that the individual retaining their law enforcement status would raise safety concerns of imminent harm to the employee, coworkers, or other third parties” (Section 3.H).
  
  In other words, there needs to be an extraordinary reason why retaining someone’s law enforcement authority (i.e., keeping their badge/credentials) would be an imminent safety concern, which is a high bar to meet, resulting in agents being able to retain their law enforcement authority and access to BPAPRA.
  
  
• Employees will be eligible to work light duty. However, if none is available in their station, the agency will need to look at work that can be done virtually/remotely and what light duty work exists in other CBP components within the commuting area (or virtually/remotely) (Section 4.B).
  
  
• Employees on light duty can still work overtime (BPAPRA or FEPA) associated with their light duty assignment (Section 4.B).
  
  
• Employees can attend up to 12 treatment sessions while on duty (whether arranged by EAP or privately), including reasonable travel time to/from the appointment. Anything beyond that must be on leave or while off duty, though the agency must be flexible with time off to attend these appointments (Sections 5.D and 5.G).
  
  
• There is an informal dispute resolution process for these mental health situations, but a grievance is always an option (Section 8).
  
  
• The agency agreed to implement collaborative workgroups with NBPC and NTEU to examine and make recommendations regarding FFDEs, Peer Support/Chaplain programs, EAP, and the Veterans Support Program (Section 7).
  
  
• The agency will offer training about this MOU to supervisors, managers, and union reps (Section 3.A).
  

We all need to look out for each other, so if you see an employee struggling, show them this MOU and do what you can to help them get the help they need.

Download a copy of the MOU here, and reach out to a local union steward if you have questions about it.

On January 11, 2023, Customs and Border Protection (CBP) announced and published a new directive entitled Emergency Driving and Vehicular Pursuits, set to take effect in May 2023. The new policy replaces the 2021 directive entitled Emergency Driving Including Vehicular Pursuits.

CBP’s new pursuit policy purports to be about saving lives, but in reality, it is more about making it almost impossible for Border Patrol Agents, Customs and Border Protection Officers, and other law enforcement officers (LEO) in CBP to do their jobs. It essentially absolves smugglers of all responsibility for the terrible things they do on the road and places it squarely on the shoulders of the LEOs trying to do their job to protect America.

The National Border Patrol Council (NBPC) submitted dozens of questions about the policy to CBP so we can understand what some of the more vague and contradictory language means and confirm if the agency intended to implement what the policy states. Some of the language, as written, is nonsensical, so we have to confirm if CBP understands what their language means for LEOs in the field.

Although there are numerous problems with the policy, here are some of the more concerning aspects:

• The new policy essentially requires agents to predict the future. If they don’t predict that a smuggler will crash, and the pursuit continues and the smuggler crashes, even if there are no dangerous weather or road conditions, CBP will blame the agent because they did not correctly determine the “foreseeability of risk” and terminate the pursuit. See Sections 6.15, 6.16, 8.23, 8.26, 8.27, and 8.29.

• Smugglers will be encouraged to drive recklessly, causing supervisors to immediately end pursuits because they want to avoid being investigated by the Office of Professional Responsibility (OPR), allowing smugglers to escape into the country with unknown people or contraband. See Sections 6.15, 6.16, 6.31, 8.29, and 8.30.
  
  Previous versions of the pursuit policy allowed a maximum of two LEO vehicles to be directly involved in the pursuit, with an appropriate number of additional agents available for backup, following at a reasonable distance. The new policy allows a maximum of three vehicles to be involved, and no other agents may follow at any distance, including on adjacent roads, regardless of whether they are pursuing an armed felon or the average smuggling load driver, creating significant officer safety concerns. For example, if a load driver stops and ten people run away, agents will be outnumbered because no other agents are allowed to follow at a safe distance. See Sections 6.5, 8.47.4, and 8.47.7.

• Agents will not be allowed to assist local, county, and state law enforcement engaged in pursuits if the agent’s supervisor determines that the pursuit is not in compliance with CBP’s pursuit policy – evenif the other officer is complying with their own agency’s policy. If the supervisor believes it does not comply with the CBP pursuit policy, agents will be forced to pull over and leave the other officer on their own, creating more officer safety concerns, even if the CBP supervisor had requested that another agency take over the pursuit. This policy will jeopardize the lives of local, county, and state LEOs, especially those who work in remote locations. See Sections 8.47.10, 8.53.6, 8.53.7, and 8.73.
  
  
• If a supervisor orders an agent to terminate a pursuit, the agent must pull over to the side of the road and turn off their lights “to effectively signal (to the public and to the subject vehicle)” that the agent is no longer pursuing. But then, the agent must continue up the road to determine if the vehicle has crashed or to check for any other incident. See Sections 8.45, 8.45.1, 8.45.2, and 8.46.
  
  
• Agents responding to arrest illegal aliens or narcotics smugglers must activate their lights and sirens while responding if they exceed the speed limit – even if briefly, to pass someone – including while driving on empty roads in the middle of nowhere. While we have no issues with using lights and sirens when appropriate and for safety reasons, this takes the decision away from agents to be able to attempt to interdict illegal cross-border traffic stealthily. In addition, it will notify cartel smugglers that agents are on the way and how far away they are, especially at night.

Similarly, suppose a suspicious vehicle passes an agent while parked on the side of the road, and the agent needs to exceed the speed limit to catch up to that vehicle to read the license plate. The agent would have to activate their emergency lights to catch up before deciding if they have enough reasonable suspicion to pull it over. So motorists will think they are being pulled over, even when the agent has not yet attempted to do so. See Sections 6.8, 8.9, 8.10, 8.15, 8.16, and 8.17.

• The policy states, “CBP will not question any Authorized Officer/Agent’s decision to Terminate a Vehicular Pursuit. An Authorized Officer/Agent involved in a CBP Pursuit may Terminate that Pursuit at any time, for any reason.” So CBP has made it a policy that they will never question a decision to terminate a pursuit, even if the subject is a violent felon. But if that violent felon chooses to drive erratically and crashes and hurts himself or someone else, they want the responsibility to fall only on the agent. See Section 4.3.
  
  
• Finally, despite significant changes to the pursuit policy, CBP will provide only a one-hour online training session before the policy goes into place. Such a small amount of training will inevitably lead to policy violations. Watching a one-hour video about a topic that upends long-standing policy is simply not enough to properly educate the workforce on the changes.

The last thing agents want to see is people getting hurt or killed in a vehicle crash. These crashes are 100% preventable and only happen because a smuggler chooses to flee from law enforcement. And even when law enforcement is not around, some smugglers still end up in single-vehicle crashes on their own because they choose to drive dangerously.

Creating a policy that actively discourages or prevents LEOs from pursuing vehicles containing people who have, up until that point, successfully evaded law enforcement will only encourage more smugglers to get on the roads with illegal immigrants and narcotics. The policy, however, goes one step further and creates officer safety concerns for agents and LEOs from other agencies who are doing their best to help Border Patrol Agents do their job. The NBPC will continue to do whatever it can to ensure that whatever policy is ultimately implemented is unambiguous and gives agents and other CBP LEOs the ability to do their jobs to protect the American public.

Aside from the changes to COVID-19 OWCP claims we published earlier this month, DOL published some additional information.

This past Friday, DOL published a bulletin containing several questions and answers, and one, in particular, is going to trip up employees who don’t explain the below information to their doctor.

In other words, you can’t only submit a positive COVID-19 test to qualify for COP.

Here’s what we recommend employees do if they test positive for COVID-19, believe they know exactly when they were exposed to it, and intend to submit a Form CA-1:

1. If you suspect you have COVID-19, take an at-home test, schedule an appointment with your doctor, or visit a clinic or urgent care provider. NOTE: if you test positive with an at-home COVID-19 test, you must follow up with a doctor to be tested again, as DOL will not accept an at-home test alone.
   
   
2. When/If you test positive for COVID-19 at a doctor’s office, tell the doctor that you need a medical note that “explains why you are not able to perform the duties of your position as a result of the positive COVID-19 diagnosis for the work days missed.”
   
   For example, the doctor likely expects you to quarantine because you are contagious. However, the doctor may also want you to have enough time to rest and recover from COVID-19. If that is the case, or they have other reasons for why you need to be away from work, they need to explain that in the medical documentation as thoroughly as possible, in addition to the need to quarantine.
   
   
3. Notify your supervisor that you tested positive. If you intend to submit a Form CA-1 (because you know when you were exposed to COVID-19 on duty), tell your supervisor and request the use of COP. You do not have to provide the medical documentation immediately before you go on COP, but you will have to provide it eventually.
   
   
4. Fill out and submit the Form CA-1 on www.ecomp.dol.gov, and upload the medical documentation.
   
   
5. If you are unable to get a doctor’s appointment right away, you can still fill out the Form CA-1 and use COP (if you know when you were exposed to COVID-19 at work), and you can upload the medical documentation after the appointment. However, you must submit the medical documentation as soon as possible, within 10 days.
   
   
6. If you do not submit appropriate medical documentation in time and you used COP, the agency will be required to convert those days of COP over to sick leave or annual leave.

We expect that some supervisors are going to struggle with this and require you to provide the doctor’s note before letting you use COP. That’s not how it works, but make sure you understand that if you don’t ultimately provide the appropriate medical documentation from your doctor, DOL may reverse the COP and make you use your own leave.

Dr. Carrie Elk is returning to Del Rio Sector to follow up on previous consultations and to give presentations to and meet with other employees who are interested in speaking with her.

She provides group and individual consults with employees, generally focusing on psychological trauma, but is also available for other matters, including training on PTSD resiliency and coping skills.

Del Rio Sector has published the below schedule and sent information to the stations, along with a link to schedule an appointment. However, if you haven’t seen the email, check with your supervisor or contact DRT’s Training & Traumatic Incident Management Branch (TTIMB) for more information.

Please note that all discussions with Dr. Elk are strictly confidential.