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Home Legislative Action Congressional Testimony Protecting the Protectors: An Assessment of Front-line Federal Workers in Response to the Swine Flu (H1N1) Outbreak

Protecting the Protectors: An Assessment of Front-line Federal Workers in Response to the Swine Flu (H1N1) Outbreak

5/14/2009

House Oversight and Government Reform Subcommittee on the Federal Workforce, Postal Service and the District of Columbia

Chairman Lynch, Ranking Member Chaffetz, 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 Specialist (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 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 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 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 April26th Homeland Security Secretary Napolitano sent a message to DHS employees working new 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 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."

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. 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. We have not received a reply.

According to a press report in the Washington Times on May 2"d, 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 governmentwide 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 asking again for written guidance that these employees be allowed to wear respirators/masks at their discretion. There is still no written guidance from DHS or CBP or TSA on this issue.

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. It is our understanding that employees of the Border Patrol, a division within CBP, which operates on land borders between ports of entry, were voluntarily donning masks without objection from supervisors.

At a briefing last week, NTEU was informed that if our members who work at the IRS wish to wear masks to reduce the potential for exposure to swine flu they are free to do so.

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

Who is responsible for the 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 Departmentwide 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.

at 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 ports of entry require them to spend their entire workday in crowded conditions. The Transportation Security Officers 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 all of their Mexican counterparts, often just steps away, wearing masks as they performed their duties. Everyone who crossed the Mexican border in either direction saw all the Mexican border officials wearing masks. Would it have unduly alarmed them to see some U.S. border officials also wearing masks?

The first person to die in the U.S. from swine flu was a toddler. The second was a pregnant woman. Both had been in Mexico. Some of our members working on the Mexican border are parents of small children. Some may be pregnant or have a pregnant spouse. Some may live with family members who are particularly vulnerable due to chemotherapy treatment or autoimmune disease or even old age. Does the risk of possibly alarming the public carry more weight than the unnecessary possible exposure to the swine flu of individuals in these situations?

To my knowledge NTEU members at ports of entry 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.

Thank you again for holding this important hearing.

AFFIDAVIT I , Ryan K. Imamura, do hereby state:

I am employed by the U.S. Bureau of Customs and Border Protection, Department of Homeland Security, in the position of CBP Officer.. I am currently assigned to the port of Las Vegas at McCazzan International. Airport.

My assigned duties include processing of inbound passengers to ensure compliance of U.S. customs and immigration laws. In the course of these duties I regularly come into frequent contact with members of the traveling public from Mexico. Those contacts routinely require interaction within six feet of the travelers,

CBP employees at my Port were generally instructed that we were not authorized to wear protective masks unless we were within six facet of an individual who was actively exhibiting flu-like symptoms. These instructions were issued orally at muster to CBP employees by Port Director Debbie Sanders, on or about April 28, 2009.

Qn May 1, 2009, I sent an e-mail message to Ms. Sanders through my respective chain of command. The subject was a request for discretionary use of an N95 respirator mask as means of minimizing my chance of contracting I 1N1 and M tarn infecting my wife, 20 month old daughter and my newborn son. Also included were references to CDC disseminated information. that individuals infected with H1NI could be contagious while not showing outward signs of being sick.

Approximately, one hour later, CBP Chief Antonio Gonzalez, came and verbally informed me that Port Director Sanders denied my request. I asked Chief Gonzalez if I would be receiving a written response and he 'declined. I noted the time and immediately sent an e-mail message to NTEU stewards Monique Jacobs and Ken

an regarding the management response. I also sent a copy to Chief Gonzalez so he would have an opportunity to correct anything I may have misinterpreted. To date, Chief Gonzalez has neither challenged nor corr. ected my recollection of this encounter.

CBP management is gambling with the health and lives of its employees and their families. We are a group of dedicated, vigilant and hardworking professionals that love our jobs and our country. All we ask in return is the right to protect ourselves and our families while we protect America.

I swear/affirm under penalty of perjury the foregoing is true and correct to the best of my knowledge and belief.

Signed: 'A

May 08 2008 4:22PM

HP LRSERJET FRX

AFFIDAVIT

I, Maria M, Seda Frauqdo hereby states

I am employed by the U.S. Customs and Border Protection, Department of Homeland Security, in the position of Customs and Border protection Agriculture Specialist. I am

currently assigned to the Laredo, Texas Port of Entry, a land port across the border from Mexico.

My assigned duties include processing vehicles, passengers, and pedestrians inbound to the United States from Mexico to ensure compliance with, among other laws, U.S. Agriculture, Customs, and

gration laws. In the course of pexforining those duties, I regularly come in contact with members of the traveling public inbound from Mexico, The performance of my regularly assigned duties as a CEP Officer requires that I routinely maintain contact within six feet of individuals arriving from Mexico.

3, On or about Apr1127, 2009, at approximately 1700 hours I was assigned to and working the secondary inspection area at the Laredo Port of Entry. I was in the process of inspecting a vehicle end its passengers, and wilting a penalty. A young woman (age 14-16 years), one of the passengers in the vehicle I was inspecting began vomiting. Despite the obvious illness, Supervisory Customs and Border Protection Officer Francisco Molina ordered me to remove the protective mask I was wearing. He said he had decided that the woman was sick because she was pregnant and that I did not need to wear the mask unless the passenger showed signs of sickness, The woman's mother had also placed an ice-pack over the woman's head at all times I was present with her. I understood that I had to obey the orders of the supervisor, and that is why I removed the protective mask.

4. I desired to wear the mask because of concerns about contracting swine flu.

I swear/affirm under penalty of perjury the foregoing is true acid correct to the best of my knowledge and belief.

Signed:

O54e OO

Franqui Affidavit

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AFFIDAVIT I, Lilia Pineda, do hereby state:

I am employed by the U.S. Bureau of Customs and Border Protection, Department of Homeland Security (hereinafter referred to as "CBP") in the position of CBP Officer. I am currently assigned to the Otay Mesa Port of Entry, a land border.

My assigned duties include processing inbound passengers, vehicles and pedestrians to ensure compliance with U.S. Customs and Immigration laws. In the course of performing those duties, I regularly come in contact with members of the travelling public inbound from Mexico. These contacts routinely require contact within six feet of those individuals.

On or about April 28, 2009, I was working at Otay Mesa, Primary Lane 4, and decided to wear an N-95 respirator mask. I made this decision for several reasons. I have been fitted for an N-95 respirator mask. (I had also been trained to fit other CBP Officers for the N-95 respirator mask.) 1 was encountering individuals who were coming from Mexico City and other cities in central Mexico, where the swine flu is prevalent. Also, I had a cold at the time and felt I was especially vulnerable to getting another illness. I was also concerned about exposing other family members to the swine flu, including my infant nephew, whom I see regularly.

At approximately 9:30 a.m., while wearing the N-95 respirator mask while working, I was approached by Chief Kait who instructed me to remove my mask. I explained to him that I had taken the training for respirator fit test trainer, that I felt it was a health and safety issue for me to wear the mask, that I had been fitted for a respirator mask, etc. Despite my objection, Chief Kait refused to allow me to wear the mask. He repeatedly asked me angrily with his hands at his waist, "Are you going to comply or do you want to go home sick." I did comply.

I swearlaffirm under penalty of perjury the foregoing is true and correct to the best of my knowledge and belief.

Signed:

Dated:

05 J E /U9

Al'IDAVIT 1, Kenneth Eagan, do hereby, state:

I am employed by the U.S. Bureau of Customs and Border Protection, Department of Homeland Security, in the position of Customs and Border Protection Officer. I am currently assigned to the Las Vegas Port of Bntry, an airport.

My assigned duties include processing inbound passengers, to ensure a mpliance with U.S. customs az d immigration laws. ba the course of performing those duties, I regularly come in. close contact with members of the traveling public arriving from Mexico. These contacts routinely require contact within six feet of those hrdividt~als.

On Monday April 27 2009, I was scheduled to work Priuaary Inspection Booth 8 from 0930 until 1730. Aft I setup in the booth to begin processing passengers, X donned protective gloves and the N-95 mask. The first two flights of the day were from Mexico, and one of those was from Mexico City, the epicenter of the swine flu outbreak. During the second flight, Mexicans flight 996 arriving from Mexico City, Chief Gonzalez came to my assigned booth and blocked the isle so no new passengers could approach. The other supervisor, Ernie Camcpbell blocked the booth door behind me. I was processing a passenger at the time and Chief Gonzalez interrupted the inspection, ordering me to remove the mask. He stated, " TAKE Tflg MASK OFF NOW, YOU A RE NOT AU HORIZED TO WEAR A MASK." I shed processing the passenger, removed the nitrite gloves, used hand sanitizer to cleat: my bands and then removed

the N-95 mask.

After I removed the mask, Chief Gonzalez told me not to wear a mask while processing passengers. He told me that the only time I could wear a mask was if the person standing hi front of me was showing obvious signs of the flu, as had been explained in a muster briefing. I told Chief Gonzalez that if I waited for someone to hack (cough) on me, it would be too late for tli' mask to protect against exposure. Additionally, I advised him that according to the CDC, a p&on could have the flu from one to seven days without showing any symptorrts, but would be contagious within 24 to 48 hours after b mg infected. He again ordered me to not wear any protective masks until flu symptoms were being displayed by the passenger in front of me.

CEP employees at my POE were generally instructed that we were not authorized to wear protective masks unless we were within six feet of as individual who exhibited flu-like symptoms. These instructions were issued verbally at multiple musters by Chief Gonzalez, Supervisors Ernie Campbell, Frank Hoopes, OliDorsey and Port Director Sanders.

I swear/affirm under penalty of perjury the foregoing is true and correct to the best of my k owledge and belief.

AFFIDAVIT I, Samuel Santiago, do hereby state:

I am employed by the U.S. Customs and Border Protection, Department of Homeland Security, in the position of Customs and Border Protection Officer. I am currently assigned to the Laredo, Texas Port of Entry, a port on the land border with Mexico.

My assigned duties include processing vehicles, passengers, and pedestrians inbound to the United States from Mexico to ensure compliance with, among other laws, U, S. Customs and Immigration laws. In the course of performing those duties, I regularly come in contact with members of the traveling public inbound from Mexico. The performance of my regularly assigned duties as a CBP Officer requires that I routinely maintain contact within six feet of individuals arriving from Mexico,

Orr April 2B, 2009, and again on April 30, 2009, U.S. Customs and Border Protection management instructed me not to wear a protective mask and to remove the protective mask that I had been wearing.

On April 28, 2009, at around 0740 I arrived at Bridge 1, Laredo POE to begin my assigned. shift (0800.0400). I inquired what preventive measures were being taken to avoid exposure to the Swine Flu, to which I was informed that face masks were available for use. I opted to wear one. A few minutes later Supervisor Esteban Morales communicated by radio that the use of face masks was not authorized. I asked to see the policy in writing, as I was led to believe that the masks were provided by the agency for safety reasons, to be used by all employees. After this incident, I went into the CBP Net website which indicated that the use of masks was to be at the employee's discretion if official duties were to be carried out at a distance of less than 6 feet of other individuals. I proceeded to pass this information on to Supervisor Morales, who forwarded it to Chief

CBP Officer Adriana Arce.

On April 30, 2009, at approximately 0930, I was working on primary when Supervisor Juan Garza approached me and indicated that my presence was requested at a meeting with Chief CBP Officers Arttub Ramirez and Adriana Area. I immediately complied, and when I reached the office, Supervisors Hermiaia Garcia, Jorge Ruiz, Esteban Morales, and Juana Garza were present, Two other CBP Officers, Miguel Medrano and Carlos Garcia, had also been called M to the meeting. Chief CBP Officer Arce and the other managers told me we were not authorized to use the face masks as protection against the risk of exposure to the Swine Flu, but that we could keep them within reach, in case we encountered an infected person. I requested the order in writing, to which Chief Arce replied that she would not put anything in writing. Chief Arse became very upset and said she could proceed to take disciplinary action against me.

The Chief indicated that the public was not to be alarmed, as it would create a negative economical impact, that the Swine Flu was only a virus, and there was no reason to be concerned. I responded that I was not a doctor, and had no medical trainring, so how was

Santiago Affidavit

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I supposed to know when a person might be M. I was also told to escort any person who was ill to another area, far from the rest of the traveling public, I wanted to know what

that area was, or where it was, since we had not received instructions on low to properly process an ill person,

I asked if I wail expected to pay medical expenses out of my own pocket if I were to become ill due to the Swine Flu, to which the managers indicated that the agency would

not be responsible for any of my expenses, even though they would be directly responsible for any exposure and subsequent illness.

4. I desired to wear the mask because of concerns about contracting swine flu,

I swear/aff'uzn under penalty of perjury the foregoing is true and correct to the best of my knowledge aztd belief.

Signed:

~?~r?k

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Dated:

DdO (/w p

Santiago Affidavit

2of 2

AFFIDAVIT I, Monique Jacobs, do hereby state:

I an employed by the U.S. Bureau of Customs and Border Protection, Department of Homeland Security (bereinafler referred to as "CBP") in the position of CBP Officer. I am currently assigned to the Las Vegas Port of Entry, an airport.

My assigned duties include processing inbound passenger to ensure compliance with U.S. Customs and Immigration laws_ In the course of performing those duties, I regularly come in contact with members of the travelling public inbound from Mexico. These contacts routinely require contact within six feet of those individuals.

On or about May 1, 2009, I sent an email to Chief Antonia Oottzatez, and requested that I be afforded the option of wearing a protective mask while processing passengers to protect me and my family against the HIN1 flu. I asked for a YES or NO answer to my question. gVhat prompted my email was an incident that occurred earlier ins the day, where a concern arose about whether an inbound passenger had been infected. By the time the passenger had been identified numerous CBP Officers had been physically within six feet of the passenger„

While on my nutrition break at 172$, .i, was approached by Chief Gonzalez, He requested that I turn off the television because he needed to speak with me. He stood in front of me - on the other side of the table - white Supervisor Hoopes stood behind me in front of the door. Chief. Gonzalez then told me that in accordance with the directive, unless a passenger appears to be ill, I am not allowed to don a mask and that this was as close to in writing as I was going to get. I later coa timed in writing that based upon this conversation, I understood that I was being denied the right to don a mask unless I have visual signs of an ill passenger.

I swearfaffinu Pander penalty ofpei ury the foregoing is true and correct to the best of my knowledge and belief.

Signed:

Dated:.

1e- `0 M. Jacobs

AFFIDAVIT

I, Scott Cottingham, do hereby state:

My assigned duties include processing inbound passengers, vehicles and

. pedestrians to ensure compliance with U.S. Customs and Immigration laws. In the course of performing those duties, I regularly come in contact with members of the travelling public inbound from Mexico. These contacts routinely require contact within six feet of those individuals.

On or about May 8, 2009,1 was working at the Otay Mesa POE on primary and . decided to wear the N-95 respirator mask. I have received the necessary training and fitting to wear the mask. I decided to wear the mask, because many of the individuals I was in contact with were coming inbound from central Mexico, where there have been many reported oases of swine flu. I was instructed to remove the N-95 respirator mask and told that I was not to return to working primary until 1 took the mask off.

I swear/affirm under penalty of perjury the foregoing is true and correct to the best of my knowledge and belief.

Signed:

'~''-ter

Dated: