NBPC Zoom Webinar – COVID Vaccine Deadlines: What to Expect

The NBPC Legal Division will be hosting a Zoom Webinar for members on Monday, November 22, 2021, to discuss the COVID vaccine deadlines and what to expect regarding the government’s vaccine mandate, exemptions (religious / disability / delay due to medical) and an update on the Union’s approach to them.

If you have submitted a reasonable accommodation request or are still considering submitting one — or even if you have opted not to submit one — join this webinar to learn what are the next steps.

Date: Monday, November 22, 2021
Time: 10:00 AM CST

Click here to connect to the presentation or copy/paste the following link into your web browser:

https://us02web.zoom.us/j/89745787858?pwd=M1RHWHpVTGhtMmpXZmNWOWowS1pHUT09

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Meeting ID: 897 4578 7858
Passcode: 579957

Update regarding use of ACMS

Below is some guidance from the NBPC’s Legal Division regarding the agency’s announcement that reasonable accommodation requests now need to be submitted through the DHS Accessibility Compliance Management System (ACMS).

The ACMS is designed to be used instead of having employees submit Title VII reasonable accommodation requests through the traditional methods, i.e., to their supervisor, DCR Officer, or the CBP Reasonable Accommodation email address. If you have already submitted a reasonable accommodation request to your supervisor, DCR Officer, or the Reasonable Accommodation email address, please mention that in what you submit through the ACMS, including the date you submitted the prior request.

The ACMS asks a number of questions, including two questionable inquiries in the religious accommodation section that ask for information relating to a legal standard from a different law (the Religious Freedom Restoration Act) and two that request specific confidential medical information although the request is for a religious accommodation. We want to make you aware of these issues. You may, of course, respond to the questions as currently written, or alternatively, incorporate the suggestions below.

However, first, we have to address the use of the ACMS itself.

Can the agency require the use of ACMS or are employees allowed to submit a reasonable accommodation request in other ways (such as via the already-existing CBP directives)?

The reasonable accommodation (RA) process initially places more burdens on the employer than on the employee. An employee, in general, is allowed to request a reasonable accommodation in many different ways and it is the employer’s obligation to recognize the request as a RA request even if the words “reasonable accommodation” are never used. An employee may make a RA request verbally by talking with a supervisor. A request can be in writing. But a request does not require formality.

In the case of CBP, it does not appear that the agency has the authority to mandate that all RA requests be submitted only through the ACMS system. The agency must consider all RA requests that have already been submitted and it must also consider all RA requests that are made outside of the ACMS. Employees may choose to submit a RA request through ACMS and may elect, but are not required, to resubmit their requests through the ACMS.

Although they may not be legally required to submit or resubmit their requests through ACMS, we would suggest that employees who have already submitted their RA requests resubmit them via ACMS and employees who have not already submitted use the ACMS system. The reason is two-fold.

The first is that requests submitted through ACMS will be routed directly to decision-makers whereas previously submitted RA requests may take longer to reach the designated decision-makers.

Second, the ACMS system provides an opportunity for the employee to answer questions that, in general (see below), the employer has the right to ask to help determine the sincerity of, for instance, a religious exemption request. RA requests submitted through another avenue may be subject to delays in processing and decision-making if the submission did not include answers to the questions posed in the ACMS.

Even if the agency does not have the authority to mandate that accommodation requests only be submitted through the ACMS system, they may have the authority to require the use of it as a follow-up, and thus refusal to use the system may adversely impact the processing of the request.

CBP has not yet indicated what they will do with an employee who has submitted an RA request through the traditional process and then never re-submits via ACMS.


If you choose to submit your RA request through ACMS, below is suggested language to include for some of the questions, along with your response.

ACMS question: “Would complying with the COVID-19 vaccination requirement substantially burden your religious exercise? If so, please explain how.”

“I am submitting a request for religious accommodation from the vaccine mandate. According to the EEOC’s Compliance Manual on Religious Discrimination and Accommodation (1/15/21), the standard under Title VII is whether my “sincerely held religious belief, practice or observance conflicts with a work requirement,” not whether complying will “substantially burden” my religious exercise. Being required to comply with the vaccine requirement conflicts with my sincerely held religious belief that … [explain the nature of your sincerely held religious belief and how it conflicts].”

ACMS question: “Please describe whether, as an adult, you have received any vaccines against any other diseases (such as a flu vaccine or a tetanus vaccine) and, if so, what vaccine you most recently received and when, to the best of your recollection.”

“I am requesting a religious accommodation, not a medical accommodation, and this request asks for information the EEOC has stated in its COVID-19 guidance is confidential medical information. This question is a medical examination that may elicit information about a disability and is not part of establishing whether I have a sincerely held religious belief, practice, or observance that conflicts with a work requirement. I have addressed this issue, without disclosing medical information, in response to the next question asking whether I have a religious objection to the use of all vaccines. [In response to the next question “If you do not have a religious objection to the use of all vaccines, please explain why your objection is limited to particular vaccines,” respond to the broader question of whether you do or do not have a religious objection to the use of all vaccines and if so, why, and if not, why not.]

ACMS question: “If there are any other medicines or products that you do not use because of the religious belief underlying your objection, please identify them.”

I am requesting a religious accommodation, not a medical accommodation, and this request asks for confidential medical information about what medications I may be using or have used in the past and is not part of establishing whether I have a sincerely held religious belief, practice, or observance that conflicts with a work requirement. This question is a medical examination that may elicit information about a disability. I am responding to this question without disclosing medical information. [In response, if applicable, address in general whether you would not use a certain type of product or any products with certain ingredients in them because of your sincerely held religious belief. For example, I would not use any medication that I knew had X in it because of my sincerely held religious belief regarding Y.]

Vaccine adverse reactions covered by OWCP

DOL announced that the Federal Employees’ Compensation Act (FECA) will cover vaccines obtained since the vaccine mandate executive order was announced.

Employees are authorized to get the vaccine on duty and are encouraged to do so, but even if you get it off duty, as long as it was received after the mandate went into effect, you are covered for any adverse reactions to the vaccine.

DOL’s bulletin announcing this can be viewed here.

Additional info regarding medical and religious accommodations

Things to look out for when you submit your request

The union has understandably received many questions as we help members with their individual medical/religious accommodation requests in response to the COVID-19 vaccine mandate. While our legal team continues to search for a legal option to address the mandate, employees need to start the reasonable accommodation request process. In an attempt to address these questions and potentially other issues, we will discuss both types of reasonable accommodations.

There is a ton of information here, so please, read all of the words before you submit your request to the agency. If you have already submitted your request, you can always follow up with additional information. You should submit the request as soon as possible, but we expect there will be a delay in processing everything, particularly since CBP has no idea how to handle all of the cases.

However, none of this is going to help you if you do not have a genuine and sincerely held belief or medical condition supported by medical evidence.


Disability Accommodations

First, we have medical accommodations, also known as reasonable accommodations based on a disability. In this circumstance, employees are generally requesting a modification or adjustment to the job that would allow them not to get the COVID-19 vaccine. Other examples of modifications to jobs can involve special types of office furniture or different tools being used because of someone’s medical condition.

Employees will be required to provide medical evidence showing why their doctor believes the employees cannot or should not get the vaccine. For example, people who have a history of allergic reactions to vaccines may be told by their doctor not to get the COVID-19 vaccine – this should be relatively easy enough to document and provide as part of a request for a disability accommodation.

However, if you turn in a request for a disability accommodation with no medical paperwork to support the request, the agency will likely deny it. Under the EEO law and regulations, the agency has the right to request this information to start the interactive process. They can also ask additional questions during the interactive process. If you do not provide supporting information, then the EEOC will view it as you not cooperating during the interactive process. As a result, the agency will most likely deny it and their decision will be upheld. Therefore, if you have a legitimate medical concern that you can back up with medical paperwork from your doctor, you need to be able to articulate the issue and beware that the agency will likely provide your paperwork to a doctor within CBP to review.

When you submit your request, make sure you ask for a temporary or interim accommodation that will last until the agency makes a final decision about the request. And do not submit a two-sentence explanation, simply citing “medical concerns,” because that will be easy for the agency to ultimately deny.

We have also heard some agents say they will request a disability accommodation but provide no medical evidence because it is none of the agency’s business. As stated above, the agency has the right to ask for medical information. Ultimately, it is your choice to make, but taking that approach will not help you in the long run. The agency can deny the accommodation, and then start any enforcement action against you. While you can appeal that decision through the EEO procedures, as you all know, that process can take years to resolve. Meanwhile, if you continue to refuse the vaccine the agency may ultimately remove you from your position.

The specific instructions you need to follow for a disability accommodation can be found here on the NBPC’s website.


Religious accommodations

Religious accommodations are a bit more nuanced than disability accommodations and may require more of an explanation from the employee – the accommodation generally being requested is not to have to get the COVID-19 vaccine. When people hear “religious accommodation,” they might assume it means there must be a religion that has a particular tenet against vaccination. That certainly would make it easier to prove, but this is not required. 29 CFR 1605.1 defines “religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”

This same regulation goes on to state, “The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.”

So what does this mean? Essentially, if you have a “moral or ethical belief as to what is right and wrong” that you believe as strongly as someone who has a traditional religious belief, then it qualifies as a “religious practice.” Similarly, even if your religion says vaccines are acceptable, but you have a stricter belief, that is also fine, provided you can articulate yourself well enough to make the agency understand what it is that you believe.

As you see in the second cited sentence of 29 CFR 1605.1, your belief does not have to match that of the religious group (i.e., the difference in belief “will not determine whether the belief is a religious belief of the employee or prospective employee.”). However, be prepared to explain that you understand how your beliefs differ from that of the religious group or the leader of a particular religion.

The agency can still ask follow-up questions if they have reasonable questions about your religious beliefs. For example, if you have trouble articulating your beliefs, they might ask you how long you have held these views, or perhaps even how long you have been a member of the religion. If your answer happens to be “uh, since three weeks ago,” you’re going to have a bad time. They might also ask how many other vaccines you have gotten in your life. If you got them as a kid because your parents made you do it, that’s a perfectly acceptable answer. But if you have gotten numerous vaccines as an adult over the years, you will have to explain why you got those vaccines, but now suddenly, you don’t want this vaccine. As people get older, their views change, so you should explain if you have become more devout or born again.

Be prepared for agency officials to be skeptical of your claim, particularly when they are likely receiving so many from Border Patrol employees. Just like with disability claims, we have heard people say they are not going to give any details about their religious beliefs because it’s none of the agency’s business. Again, the less you cooperate, the more likely it will be that the agency denial decision will be upheld. While we can sympathize with that approach, the only thing you are doing is making it easier for the agency to deny your claim. So if you refuse to provide more information, they will decide with whatever limited information you provided initially or during the interactive process.

Just like discussed above with the disability accommodation request, when you submit your request, make sure you ask for a temporary or interim accommodation that will last until the agency makes a final decision about the request. And do not submit a two-sentence explanation, or something stating “I don’t want the vaccine because of reasons and my religion,” because that will be easy for the agency to ultimately deny.

The specific instructions you need to follow for a religious accommodation can be found here on the NBPC’s website.


In conclusion…

Above all else, you must be honest when you provide this information and answer questions during the interactive process. Otherwise, you could face serious disciplinary action for lying.

None of this advice is intended to be used as a template or go-by, because, obviously, if the agency receives exemption requests that are mirror images of each other, this will raise eyebrows. Again, you must draft the request using the facts of your personal circumstances.

The purpose of this article is to make sure everyone understands some of the issues that will likely pop up with so many requests being submitted to the agency at the same time. It’s all going to boil down to how well you can articulate your beliefs or, in the case of a medical accommodation request, how well you can document the medical issue.

As good of an explanation as someone has, or with all the medical documentation in the world, the agency can still deny accommodation requests if the accommodation would create an “undue hardship” for the agency. CBP could claim that allowing so many non-vaccinated people to work for the agency creates too much risk, or it is too expensive for them to maintain operations, and deny many of them, particularly if so many people are requesting an accommodation. Nevertheless, make sure you are as detailed and thorough as you can possibly be to give yourself the greatest chance of having the request approved.

While all of this goes on, our legal team continues to search for ways to address the mandate and stands ready to address individual cases if the agency improperly denies a reasonable accommodation request.

If you are a member of Local 2366 and would like someone to review your individual accommodation request, you can send it to ra-help@nbpc2366.org, and we will get back to you as soon as possible.