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.]