Update regarding NBPC’s COVID-19 hazard duty pay lawsuit

AFGE recently sent emails to union members about changes to AFGE’s COVID-19 hazard duty pay lawsuit, which was a class-action case for all federal employees to receive hazard duty pay, regardless of their job.

Their case now requires people to individually sign up for their lawsuit because a similar class-action lawsuit for another group of employees was recently dismissed.

However, the NBPC’s COVID-19 hazard duty pay lawsuit, which was announced in August 2021, already requires members to individually sign up for the lawsuit, which thousands of members have already done. You cannot be part of both lawsuits, so if you have joined the NBPC’s lawsuit, do not sign up for AFGE’s lawsuit because you cannot be part of two cases over the same issue.

If you are part of the NBPC’s lawsuit and have already also joined AFGE’s lawsuit, contact AFGE’s law firm to have your name removed.

If you would like to confirm if you are part of the NBPC’s case, you can contact the law firm at 202-833-8855 or info@mselaborlaw.com. If you would like to join the NBPC’s lawsuit, click here for more information.

Cases like this can take a long time to resolve, so we will provide updates when they become available.

Reminder regarding COVID-19 and COP

Don’t let your supervisor screw up your OWCP case

In light of the dramatic increase in new COVID-19 cases among U.S. Border Patrol employees, we’ve seen problems all over again with supervisors who still do not understand how continuation of pay (COP) works.

If you test positive for COVID-19, tell your supervisor, and then go fill out a CA-1 on the DOL ECOMP website, which you can access from your cell phone or home computer. Your supervisor might tell you to wait and fill it out when you get back to work, but they would be giving you terrible advice you should definitely not listen to. Fill it out as soon as you can.

If you do not fill out a CA-1 right away, your supervisor is going to put you down as using your own sick leave, which you don’t need to do. When you submit the CA-1, there is an option near the end to elect to use COP — make sure you choose COP.

Now, if your supervisor is someone who is challenged by OWCP claims, they might tell you that you do not get to claim COP until the case is accepted by DOL — they’re doing it wrong. COP goes into effect as soon as you submit the CA-1, starting with the first full day you were out of work because of your illness.

If your supervisor insists they are correct and makes you use sick leave until DOL approves the case, contact a union rep in your station so we can get the issue fixed right away.

The agency is getting ready to release guidance that is in line with the CDC’s new guidance about a five-day quarantine period. Since there’s a greater chance that people will still be sick on Day 6, know that you are not required to return on Day 6 just because your supervisor tells you to. There are only certain situations in which the agency can terminate your COP, which you can read about here. If you are sick, you are sick, so make sure your supervisor understands that.

If your supervisor orders you to return to work after Day 5 and you are still sick, contact a union rep right away.

If it has been a while since you read the union’s member advisory and FAQ regarding COVID-19 and OWCP claims, be sure to check them out.

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

If you would like to connect via phone, use the below connection information.

Dial by your location
+1 346 248 7799 US (Houston)
+1 253 215 8782 US (Tacoma)
+1 669 900 6833 US (San Jose)
+1 929 205 6099 US (New York)
+1 301 715 8592 US (Washington DC)
+1 312 626 6799 US (Chicago)

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.]