Employee Support Services Memorandum of Understanding (MOU)

Local 2455 Members,

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 (CBP), 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. This MOU allows employees who are considering getting treatment to come forward and get the help they need.

As we continue to face multiple challenges on the border, 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 unless:

o   The mental health provider recommends such a referral (e.g., the treatment is not working and the employee has become a danger since beginning treatment);

o   The certificate of treatment form, Attachment A of the MOU, contains information that presents a reason to make such a referral (this form does not request medical information, so this should not be a factor);

o   Exigent circumstances exist (e.g., during these 12 months, the employee becomes a threat to themselves or others); or

o   Objective evidence exists that the employee’s medical condition has materially changed (e.g., some other injury might require them to undergo an FFDE unrelated to the mental health condition) (Section 2).

·       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, “ temporary 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.

Stay safe,

Hector Garza


Local 2455