Beyond Readiness: An Examination Of The Current Status And Future Outlook Of The National Response To Pandemic

7/29/2009

The House Committee On Homeland Security

Chairman Thompson, Ranking Member King, distinguished members of the Committee; I would like to thank the Committee for the opportunity to provide this testimony. As President of the National Treasury Employees Union (NTEU), I have the honor of leading a union that represents hundreds of thousands of federal worker including thousands of Transportation Security Officers (TSOs) at the Department of Homeland Security's (DHS) Transportation Security Administration (TSA) and 22,000 Customs and Border Protection (CBP) Officers, Agriculture Specialists (CBP AS) and trade enforcement specialists who are stationed at 327 land, sea and air ports of entry (POEs) across the United States. TSOs, CBP Officers and CBP AS make up our nation's first line of defense in the wars on terrorism, drugs, contraband smuggling, human trafficking, agricultural pests, and animal disease while at the same time facilitating legitimate trade and travel.

Employees on the frontlines of our nation's borders and airports are exposed to many threats, the newest being exposure to the H1N1 influenza. On Wednesday, April 22, 2009, the first reports of H1N1 flu exposure in the U.S. became public and the press began reporting on a swine flu outbreak originating in Mexico. To date, it is suspected that there have been as many as two million H1N1 flu cases in the U.S. H1N1 flu outbreaks are documented daily. Currently, at the U.S. Coast Guard Academy in New London, Connecticut, over ten percent of the freshman class has H1N1 flu.

This outbreak has raised serious concerns about how the federal government creates and communicates policies to protect the health of key frontline federal personnel. Most troubling to NTEU, is that key stakeholders, including federal employees and their employee representatives, are not being consulted in the development of pandemic response strategies and had not been afforded the opportunity to participate in the development of or comment on the November 2005 National Strategy for Pandemic Influenza and the May 2006 Implementation Plan. NTEU commends the Chairman for recognizing this glaring weakness in the Committee’s January 2009 report entitled, “Getting Beyond Getting Ready for Pandemic Influenza” and for calling the new Administration to address this shortcoming. I applaud the Homeland Security Committee for holding this timely hearing.

Policies to mitigate health risks for federal employees should vary according to the type of work being done and the potential for exposure. The general guidelines, which include staying out of crowds, do not adequately address situations where an employee's entire work shift requires him or her to be in close contact (within six feet) of literally thousands of travelers, which is the case for Transportation Security Officers, Customs and Border Protection Officers and Agriculture Specialists.

Specific guidance must be developed and communicated clearly and in writing to these employees who are at increased risk of exposure. It is unacceptable and shocking that more than three months after the initial onset of H1N1 flu in the U.S. and despite repeated urging from NTEU and others, there is still no comprehensive guidance in place to protect the health of these frontline employees.

The September 2007 CBP Operations Plan for Pandemic Response states that “CBP is the first line of our nation’s defense against a pandemic, both overseas and along our border.” This plan was formulated in response to the possible outbreak H5N1 avian flu pandemic. According to this plan, “CBP could experience a substantial reduction of personnel due to illness (approximately 30% to 50%), potentially having a substantial impact on sustaining continuity of CBP operations...Once a pandemic begins to spread, significant numbers of infected travelers at and between the POEs may be searched, detained, transported, and housed by CBP pending removal or transfer into the custody of medical authorities, impacting CBP’s ability to perform its mission…In spite of this, CBP must continue to carry out its priority mission to prevent the entry of terrorists and their weapons, regardless of the circumstances. To accomplish this, CBP will need to protect its workforce…”

It was therefore extremely troubling to NTEU that DHS issued conflicting and confusing guidance to frontline CBP Officers and TSOs during the initial H1N1 spring outbreak. Shortly after the swine flu outbreak became public in late April 2009, NTEU started receiving questions from our members at ports of entry around the country. In numerous locations, personal protection equipment (PPE), including gloves and N-95 respirators, was distributed to employees. At JFK Airport in New York, for example, distribution to CBP employees began on April 25th and continued through April 26th with little guidance. In the afternoon of the 26th employees were initially told they were only to wear the respirators if in contact with an ill individual. Later they were told they were not to wear the respirators at all, so as not to alarm the public or offend passengers.

On April 26th Homeland Security Secretary Napolitano sent a message to DHS employees working near the Southwest border. That message stated: "CDC recommends that a distance of six feet should be maintained between all employees and someone who appears ill. The use of N95 masks is suggested if an employee must maintain closer contact than the six feet of distance.”

On April 28th, a CBP spokesperson was quoted in CNSNews.com saying, "CBP officers and Border Patrol agents are provided personal protection gear which they may utilize at their discretion.”

On April 30th a DHS spokesperson was quoted in a media report saying, "the Department of Homeland Security has not issued an order saying our employees cannot wear masks."

Transportation Security Officers at Dallas/Fort Worth Airport were issued masks on April 26th and on the 28th told they could not wear them unless they were dealing with a traveler exhibiting swine flu symptoms.

According to a press report in the Washington Times on May 2nd, a TSA PowerPoint presentation was distributed to TSA employees on April 29th that stated: ". . . the routine wearing of protective masks by TSA personnel in the workplace is not authorized . . . In addition to not being medically necessary, the masks interfere with normal [transportation security operation] duties and hold the potential for unnecessarily alarming the public ..."

NTEU requested a copy of the PowerPoint presentation, but was told it was not available for public distribution.

As soon as questions began coming in to NTEU from our members around the country as to whether they could wear respirators or masks, NTEU began trying to find out what the current policy was and urged that these employees be allowed to wear the masks if they felt their health was at risk. We contacted CBP, TSA and DHS. DHS was saying it had not issued a department wide order prohibiting the voluntary wearing of masks, but CBP and TSA were clearly enforcing such a prohibition.

Some statements from DHS that appeared in the press indicated that managers who were preventing the wearing of masks were misinformed about the actual policy. The idea that a few managers were misinformed is clearly not accurate. NTEU heard from many, many employees from around the country and attached to this testimony are affidavits from some of them relating instances of supervisors demanding that they remove respirator masks. Many of them are disturbingly threatening and many include comments indicating the reason was fear of alarming the public. I trust this Committee will ensure that the employees providing these affidavits will be free from any negative impact.

On April 30th, DHS issued Interim Guidance stating that: "Employees who work closely with (either in contact with or within 6 feet of) people specifically known or suspected to be infected with the H1N1 virus must wear respiratory protection." (Emphasis Added.) The guidance did not address the question of the voluntary donning of masks. In addition, the Interim Guidance noted it was being released "as an interim measure until the Office of Personnel Management provides comprehensive guidance for all federal employees." OPM has since indicated it does not intend to provide such government wide guidance, stating that on questions such as this, affecting narrow segments of the workforce, decisions are up to the individual agency.

On May 1, I wrote to DHS Secretary Napolitano and OPM Director Berry urging that written guidance be issued immediately clarifying that these frontline employees would be allowed to wear masks at their discretion. On May 5th, CBP Acting Commissioner Ahern sent out an employee message reiterating the mandatory use of respirators when employees were in close contact with people known or suspected to be infected with the H1N1 virus. The message included no reference to the voluntary wearing of respirators despite NTEU's repeated requests to CBP for such guidance.

On May 8, I sent a second letter to Acting TSA Administrator Rossides and a letter to Acting CBP Commissioner Jayson Ahern asking again for written guidance that these employees be allowed to wear respirators/masks at their discretion.

On May 14, 2009, I testified before the House Committee on Oversight and Government Reform Subcommittee on the Federal Workforce, Postal Service and District of Columbia about the Department of Homeland Security’s (DHS) refusal to allow Customs and Border Protection (CBP) and Transportation Security Administration (TSA) employees to wear a respiratory mask, if they so choose, to help protect them from infection from the swine flu virus.

At the hearing, Subcommittee Chairman Stephen Lynch (D-MA) offered to work with NTEU on legislation if this situation was not quickly corrected by the Department. On Friday, May 29th, the Department of Homeland Security Under Secretary for Management, Elaine Duke, issued an updated guidance regarding the use of Personal Protective Equipment (PPE), as it applies to working in close proximity to persons exhibiting symptoms of the H1N1 virus. But again, the guidance failed to provide a clear and reasonable policy allowing for the donning of a mask at your discretion in situations not involving close contact with an apparently infected person. On June 1st, I sent a letter to DHS Under Secretary Duke seeking clarification of the May 29th guidance.

On June 4th, the House of Representatives passed H.R. 2200, the TSA Authorization Act. On the House floor, Representative Lynch offered an amendment to provide that any TSA personnel may voluntarily wear personal protective equipment (including surgical and N95 masks, gloves, and hand sanitizer) during any emergency. NTEU worked closely with Representative Lynch and strongly supported this amendment. The Lynch amendment was passed by voice vote and became part of the bill. The bill now goes to the Senate for consideration.

Unfortunately, H.R. 2200 was limited to TSA related provisions; therefore, the amendment does not address the discretionary use of PPE by CBP Officers and CBP Agriculture Specialists at the ports of entry that also daily come into close contact with thousands of travelers transiting into the U.S.

On June 16, NTEU testified before the Senate Homeland Security and Governmental Affairs Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia on this issue. NTEU asked the Committee to include similar language to the Lynch amendment in any upcoming legislation that includes CBP jurisdiction.

Working with House Appropriators and Representative Lynch, NTEU got language in H.R. 2892, the FY 2010 DHS House appropriations bill that would allow DHS personnel the discretionary use of masks without being subject to discipline.

Also, NTEU serves on the Federal Advisory Committee on Occupational Safety and Health (FACOSH). NTEU believes that the Occupational Safety and Health Administration has the expertise to formulate the pandemic flu workplace health and safety response and submitted a resolution to that effect at their scheduled meeting in June. As a result, a FACOSH work group was established to address emerging worker health and safety issues, including the voluntary use of PPE by federal workers, surrounding the H1N1 flu.

Despite these continued efforts, CBP issued a new guidance on June 17, 2009 that stated that “employees may use the personal protective equipment (PPE) in situations where they believe it is needed to safely carry out their duties.” This guidance, however, was followed by management guidance on June 19 that stated “Any employee who feels it is necessary to don PPE to perform their normal duties, must first contact their immediate supervisor…If after consultation with their supervisor the employee still has concerns, the employee will be allowed to wear PPE…Each request to don PPE must be considered on a case by case basis by CBP management.”

NTEU met with DHS and CBP officials on July 14 and raised this contradictory language and asked them to agree to a Memorandum of Understanding (MOU) with us that is clear and unambiguous. On July 23, NTEU received a proposal that we believe will be acceptable to our members. As of the submission of this testimony, NTEU and CBP appear close to an agreement.

Unlike the June 19th CBP guidance, on May 29, 2009, TSA issued Policy Guidance on Personnel Protective Equipment that is clear and allows TSOs discretionary use of N95 masks. But the May 29th TSA guidance was not shared with TSA employees and, according to TSOs, was only just distributed to TSA personnel after the reported H1N1flu-related death of a TSO at the San Juan Airport on July 19th.

These experiences with DHS during the initial and continuing outbreak of H1N1 influenza highlights the need for open and frank communication between federal agencies, their employees and their employee representatives. The U.S. Government expects a resurgence of the H1N1 flu strain in the fall and continues to prepare for the upcoming 2009-2010 winter flu season. The timing, severity and the geographic location of the resurgent H1N1 influenza remains unknown, but important issues must be addressed now for all federal workers, especially those on the frontline who are responsible for keeping our air, sea and land ports open to trade and travel. Those issues include:

1) Clear guidance is needed as to whether some federal workers should receive priority when a vaccination is approved and distributed to the public.

2) Federal leave policy must be clear, especially in the case of working parents who may have a sick or quarantined child or a child whose school or daycare is closed.

3) Social distancing is a key factor is preventing the spread of flu. For this reason, federal telework programs must be up and running to facilitate continuity of operations.

4) In the case of substantial reduction of personnel due to illness, shifting of job location and duties of federal personnel may be necessary to maintain operational control. Shift extensions, overtime, cancellation of leave and travel requirements will be critical in order to address a pandemic induced reduction in the federal workforce.

5) Clear written personnel policies must be in place to address these contingencies and frequent, updated communication with the federal workforce and federal employees’ representatives is absolutely essential.

NTEU appreciates the Committee’s continued focus on pandemic preparedness and its insistence on common sense guidance with respect to protecting frontline DHS personnel and the entire federal workforce. NTEU pledges to work with Congress and our agency partners to address the personnel challenges of a potentially severe pandemic and help to ensure the continuity of federal services.

Thank you again for holding this important hearing.