Protecting Our Employees: Pandemic Influenza Preparedness And The Federal Workforce

6/16/2009

The Senate Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia

Chairman Akaka, Ranking Member Voinovich, distinguished members of the Subcommittee; I would like to thank the Subcommittee 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 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 swine flu exposure in the U.S. became public and the press began reporting on a swine flu outbreak originating in Mexico. This outbreak has raised serious concerns about how the federal government creates and communicates policies to protect the health of frontline personnel. I applaud the Subcommittee 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, in this case, to the H1N1 influenza. 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 TSOs, CBP Officers, and AS.

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 seven weeks after the onset of the so called swine flu and despite repeated urging from NTEU and others, there is still no comprehensive guidance in place to protect the health of these frontline employees.

Shortly after the swine flu outbreak became public, NTEU started receiving questions from our members at POEs 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 N-95 masks are 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."

TSOs 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. NTEU wrote to TSA Acting Administrator Gale Rossides asking that TSOs be allowed to wear masks since they were constantly within six feet of travelers and were not expert in determining whether a traveler was ill. To date, we have not received a reply.

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 1st, 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 8th, I sent a second letter to Acting TSA Administrator Rossides and a letter to Acting CBP Commissioner 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 DHS's refusal to allow CBP and 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 DHS Under Secretary for Management, Elaine Duke, issued an updated guidance regarding the use of 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 third 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 N-95 masks, gloves, and hand sanitizer) during any emergency. NTEU worked closely with Representative Lynch and strongly supported this amendment.

Unfortunately, H.R. 2200 was limited to TSA authorization only, and the amendment does not address the discretionary use of PPE by CBP Officers and CBP AS at the POEs who also daily come into close contact with thousands of travelers transiting into the U.S. NTEU will work with Congress to include similar language to the Lynch amendment in any upcoming legislation that includes CBP jurisdiction.

The Lynch amendment was passed by voice vote and became part of the bill. The bill now goes to the Senate for consideration. NTEU appreciates the Subcommittee for holding this hearing as the first step to address this issue in the Senate. We will continue to work with DHS to design a similar policy at the administrative level, and we are particularly concerned that CBP Officers receive the ability to protect themselves as well.

As NTEU tried to address the concerns of its members at CBP and TSA, we learned that other components within DHS and other federal agencies had conflicting policies. The president of the Border Patrol union testified at the House hearing that Border Patrol employees, a division within CBP that operates on land borders between POEs, were voluntarily donning masks without objection from supervisors.

For the last seven weeks NTEU has tried to answer several simple questions.

1)Who is responsible for the policy prohibiting the voluntary wearing of masks at CBP and TSA?

OPM says it is up to each agency. DHS says it has no Department-wide policy. CBP and TSA say verbally that voluntary wearing of masks is prohibited, but will not put it in writing. OSHA says there is no policy to prohibit the voluntary wearing of masks, and CDC says it is not recommended at this time in low risk situations, which in our view, does not cover the situations our frontline employees are in.

2) Why has the policy not been issued in writing?

To this day, neither DHS, nor CBP, nor TSA have issued written guidance addressing the wearing of masks when any employee is not in proximity to an apparently affected individual. NTEU members who requested the policy in writing were told they would not be getting it.

3)What is the rationale for prohibiting the voluntary wearing of masks?

No one has been willing to address this question. In the course of attempting to answer this question, we have heard several possibilities, such as the respirators/masks aren't effective. That makes no sense, since when working in close contact with an ill traveler, it is recommended that the traveler and required that the employee don masks.

We have heard that the masks aren't appropriate unless the wearer has undergone a medical evaluation ensuring he or she is fit to wear the mask and the mask is properly fitted. Clearly, the masks would be worn in an emergency situation even if those criteria were not met, but, regardless, most NTEU members have done the medical evaluation and been fitted.

That leaves us with no other possible reasons than a desire to not alarm the public as was apparently stated in the TSA PowerPoint presentation and has been cited by numerous local supervisors. In our view, avoiding unnecessarily alarming the public is not totally without merit. However, it is one factor that must be weighed against the potential health risks to employees, their families, and others. It is difficult to weigh the competing factors when there is a refusal to even acknowledge them.

As stated earlier, the duties of our members who work at POEs require them to spend their entire workday in crowded conditions. The TSOs in Miami International Airport clear approximately 3,300 passengers on each shift, over half this number are international travelers, at JFK it's roughly 9,000 passengers per checkpoint per shift, and at O'Hare it's between 9,000 and 12,000 per checkpoint per day. Both TSA and CBP employees perform duties such as reviewing travel documents, wanding passengers, questioning them, and sometimes patting them down. All of these duties require being in close contact with travelers.

The NTEU members who have been most affected by this issue work on the land border with Mexico and at airports that clear international travelers, including many entering the country from Mexico. The U.S. Government has advised against unnecessary travel to Mexico, and all of the first cases of H1N1 flu in the U.S. involved people who had recently traveled from Mexico. Those who work on the land border saw their Mexican counterparts, often just steps away, wearing masks as they performed their duties. Everyone who crossed the Mexican border in either direction saw Mexican border officials wearing masks. Would it have unduly alarmed them to see some U.S. border officials also wearing masks?

To my knowledge, NTEU members at POEs have followed the directives of their local managers and worked diligently through this swine flu outbreak, even if they have requested the ability to wear protective masks for reasons of great concern to themselves and their families. These protectors deserve better. They deserve to know what the policies are. They deserve to know who is responsible for making those policies. They deserve to know the reasons for the policies. They deserve to have the opportunity to provide information to the policymakers and in this instance they need the policy to be changed to reflect a rational balance that gives more weight to the importance of these employees' ability to protect their health than to the potential for public alarm.

As the spring flu season ends in North American, the number of H1N1 victims has tapered off, but the U.S. Government expects a resurgence of this flu strain in the fall and continues to prepare for the upcoming 2009–2010 winter flu season. The issue of the voluntary use of personal protective equipment must be addressed, if not by the agency, then by Congress before the flu season begins again. The House has made a first step by passing the TSA authorization bill with the Lynch amendment. NTEU looks forward to working with the Senate to do the same and to expand this amendment to cover the CBP Officers and CBP AS that inspect thousands of travelers daily at the ports of entry.

Thank you again for holding this important hearing.