On September 18, 2021, the National Border Patrol Council (NBPC) released an update regarding its continued search for a legal avenue to fight the executive order mandating federal employees of the federal branch to be vaccinated against COVID-19.
While some other organizations have decided the mandate is legal, our search will continue until we are absolutely convinced that no legal remedy is available. In the meantime, employees who wish to submit a request for a disability or religious accommodation need to start putting together their request so CBP can address it as quickly as possible.
In the instructions at the below two links, there are instructions for where to send your request. When you send the request, make sure you CC your direct supervisor and your own personal email address because CBP’s Reasonable Accommodation mailbox has been filling up and you need documentation showing when you submitted the request.
If you need help with requesting a reasonable accommodation, send your name, station, and the details of the request you intend to make to email@example.com. We will get back to you as soon as possible with additional guidance or clarification.
It is unclear what direction CBP intends to take with these requests. They must consider each request on a case-by-case basis, and they will have to consider the factors used to determine if an accommodation poses an undue burden on the agency. To determine if there is an undue burden, the agency has to consider whether the accommodation would infringe on other employees’ rights, compromise workplace safety, or conflict with other laws or regulations.
DHS and CBP have also not indicated what will happen with those employees who are not fully vaccinated by November 22, 2021. Simply requesting an accommodation does not pause that deadline, but as you will see in the guidance linked above, you will need to be approved for an interim or temporary accommodation while your request is considered.
“Progressive discipline,” including counseling, is expected to take place after November 22, 2021, but, of course, CBP does not yet know what that will entail. However, the White House’s Safer Federal Workforce Task Force wrote the following in their frequently asked questions:
If the employee’s request for an accommodation is denied, and the employee does not comply with the vaccination requirement, the agency may pursue disciplinary action, up to and including removal from Federal service.
While our legal team continues to search for a legitimate legal path forward, our union reps and attorneys will assist members with the process.