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.
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 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.
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 firstname.lastname@example.org, and we will get back to you as soon as possible.