    [House Hearing, 111 Congress]
    [From the U.S. Government Publishing Office]

    PROTECTING THE PROTECTORS: AN ASSESSMENT OF FRONTLINE FEDERAL WORKS IN
                   RESPONSE TO THE SWINE FLU (H1N1) OUTBREAK

    =======================================================================

                                    HEARING

                                   before the

                       SUBCOMMITTEE ON FEDERAL WORKFORCE,
                        POSTAL SERVICE, AND THE DISTRICT
                                  OF COLUMBIA

                                     of the

                             COMMITTEE ON OVERSIGHT
                             AND GOVERNMENT REFORM

                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                  MAY 14, 2009

                                   __________

                                Serial No. 111-3

                                   __________

    Printed for the use of the Committee on Oversight and Government Reform

      Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                                   index.html
                          http://www.house.gov/reform

                      U.S. GOVERNMENT PRINTING OFFICE
    50-650                    WASHINGTON : 2009
    -----------------------------------------------------------------------
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                  COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                       EDOLPHUS TOWNS, New York, Chairman
    PAUL E. KANJORSKI, Pennsylvania      DARRELL E. ISSA, California
    CAROLYN B. MALONEY, New York         DAN BURTON, Indiana
    ELIJAH E. CUMMINGS, Maryland         JOHN M. McHUGH, New York
    DENNIS J. KUCINICH, Ohio             JOHN L. MICA, Florida
    JOHN F. TIERNEY, Massachusetts       MARK E. SOUDER, Indiana
    WM. LACY CLAY, Missouri              TODD RUSSELL PLATTS, Pennsylvania
    DIANE E. WATSON, California          JOHN J. DUNCAN, Jr., Tennessee
    STEPHEN F. LYNCH, Massachusetts      MICHAEL R. TURNER, Ohio
    JIM COOPER, Tennessee                LYNN A. WESTMORELAND, Georgia
    GERRY E. CONNOLLY, Virginia          PATRICK T. McHENRY, North Carolina
    MIKE QUIGLEY, Illinois               BRIAN P. BILBRAY, California
    MARCY KAPTUR, Ohio                   JIM JORDAN, Ohio
    ELEANOR HOLMES NORTON, District of   JEFF FLAKE, Arizona
        Columbia                         JEFF FORTENBERRY, Nebraska
    PATRICK J. KENNEDY, Rhode Island     JASON CHAFFETZ, Utah
    DANNY K. DAVIS, Illinois             AARON SCHOCK, Illinois
    CHRIS VAN HOLLEN, Maryland
    HENRY CUELLAR, Texas
    PAUL W. HODES, New Hampshire
    CHRISTOPHER S. MURPHY, Connecticut
    PETER WELCH, Vermont
    BILL FOSTER, Illinois
    JACKIE SPEIER, California
    STEVE DRIEHAUS, Ohio
    ------ ------

                          Ron Stroman, Staff Director
                    Michael McCarthy, Deputy Staff Director
                          Carla Hultberg, Chief Clerk
                      Larry Brady, Minority Staff Director

    Subcommittee on Federal Workforce, Postal Service, and the District of
                                    Columbia

                        STEPHEN F. LYNCH, Massachusetts
    ELEANOR HOLMES NORTON, District of   JASON CHAFFETZ, Utah
        Columbia                         JOHN M. McHUGH, New York
    DANNY K. DAVIS, Illinois             JOHN L. MICA, Florida
    ELIJAH E. CUMMINGS, Maryland         MARK E. SOUDER, Indiana
    DENNIS J. KUCINICH, Ohio, Chairman   BRIAN P. BILBRAY, California
    WM. LACY CLAY, Missouri
    GERRY CONNOLLY, Virginia
                         William Miles, Staff Director

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on May 14, 2009.....................................     1
    Statement of:
        Bonner, T.J., president, National Border Patrol Council,
          American Federation of Government Employees, AFL-CIO; and
          Colleen Kelley, national president, National Treasury
          Employees Union............................................    63
            Bonner, T.J..............................................    63
            Kelley, Colleen..........................................    84
        Galassi, Thomas, Director, Technical Support and Emergency
          Management, Occupational Safety and Health Administration;
          David Weissman, Director, Division of Respiratory Disease
          Studies, National Institute for Occupational Safety and
          Health, Centers for Disease Control and Prevention; Nancy
          Kichak, Associate Director, Strategic Human Resources
          Policy Division, U.S. Office of Personnel Management; and
          Elaine Duke, Under Secretary for Management, U.S.
          Department of Homeland Security............................    17
            Duke, Elaine.............................................    44
            Galassi, Thomas..........................................    17
            Kichak, Nancy............................................    37
            Weissman, David..........................................    26
        O'Brien, Thomas F., MD, vice president, Global Alliance for
          the Prudent use of Antibiotics, and director microbiology
          laboratory, Brigham and Women's Hospital, Boston, and
          associate professor of medicine, Harvard Medical School;
          and Jeffrey Levi, Ph.D., executive director, Trust for
          America's Health, and Associate Professor, Department of
          Health Policy, George Washington University................   104
            Levi, Jeffrey............................................   113
            O'Brien, Thomas F........................................   104
    Letters, statements, etc., submitted for the record by:
        Bonner, T.J., president, National Border Patrol Council,
          American Federation of Government Employees, AFL-CIO:
            Information concerning AFGE..............................    65
            Prepared statement of....................................    71
        Chaffetz, Hon. Jason, a Representative in Congress from the
          State of Utah, letter dated April 30, 2009.................    10
        Duke, Elaine, Under Secretary for Management, U.S. Department
          of Homeland Security, prepared statement of................    46
        Galassi, Thomas, Director, Technical Support and Emergency
          Management, Occupational Safety and Health Administration,
          prepared statement of......................................    19
        Kelley, Colleen, national president, National Treasury
          Employees Union, prepared statement of.....................    86
        Kichak, Nancy, Associate Director, Strategic Human Resources
          Policy Division, U.S. Office of Personnel Management,
          prepared statement of......................................    39
        Levi, Jeffrey, Ph.D., executive director, Trust for America's
          Health, and Associate Professor, Department of Health
          Policy, George Washington University, prepared statement of   115
        Lynch, Hon. Stephen F., a Representative in Congress from the
          State of Massachusetts:
            Prepared statement of....................................     6
            Prepared statement of Hon. Bennie G. Thompson............     2
        O'Brien, Thomas F., MD, vice president, Global Alliance for
          the Prudent use of Antibiotics, and director microbiology
          laboratory, Brigham and Women's Hospital, Boston, and
          associate professor of medicine, Harvard Medical School,
          prepared statement of......................................   107
        Weissman, David, Director, Division of Respiratory Disease
          Studies, National Institute for Occupational Safety and
          Health, Centers for Disease Control and Prevention,
          prepared statement of......................................    28

    PROTECTING THE PROTECTORS: AN ASSESSMENT OF FRONTLINE FEDERAL WORKS IN
                   RESPONSE TO THE SWINE FLU (H1N1) OUTBREAK

                                  ----------

                             THURSDAY, MAY 14, 2009

                      House of Representatives,
    Subcommittee on Federal Workforce, Postal Service,
                          and the District of Columbia,
                  Committee on Oversight and Government Reform,
                                                        Washington, DC.
        The subcommittee met, pursuant to notice, at 2:30 p.m., in
    room 2154, Rayburn House Office Building, Hon. Stephen F. Lynch
    (chairman of the subcommittee) presiding.
        Present: Representatives Lynch, Connolly, Chaffetz, and
    Bilbray.
        Staff present: William Miles, staff director; Marcus A.
    Williams, clerk/press secretary; Jill Crissman, professional
    staff member; Jill Henderson, detailee; Dan Blankenburg,
    minority director of outreach/senior advisor; Adam Fromm,
    minority chief clerk/Member liaison; Ashley Callen, minority
    counsel; and Molly Boyl, minority professional staff member.
        Mr. Lynch. Good afternoon. The Subcommittee on the Federal
    Workforce, Postal Service, and the District of Columbia hearing
    will now come to order.
        I want to welcome our ranking member, Mr. Chaffetz of Utah,
    members of the subcommittee, hearing witnesses, and all those
    in attendance.
        As you may know, the purpose of today's hearing is to
    examine the status of Federal agencies' occupational safety and
    health protocols that are responsible for protecting Federal
    workers from communicable diseases such as the H1N1 virus, also
    known as the swine flu.
        The Chair, ranking member, and subcommittee members will
    each have 5 minutes to make opening statements. And all Members
    will have 3 days within which to submit statements for the
    record.
        At this time, I would like to ask unanimous consent for the
    testimony of the chairman, Benny Thompson, of the Homeland
    Security Committee to be entered into the record. Hearing no
    objections, it is so ordered.
        [The prepared statement of Hon. Bennie G. Thompson
    follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Lynch. I will take a moment before we introduce the
    first panel just to make a brief introductory statement.
        In the wake of the H1N1 flu outbreak--we hope it is the
    wake--this afternoon's hearing has been convened to examine and
    discuss current Federal worker safety protections and policies.
    As Chair of the Federal Workforce Subcommittee, it is my
    responsibility to ensure the health and safety of our Federal
    employees, especially frontline Federal workers who are tasked
    with the awesome job of keeping the American public safe and
    healthy.
        While we have all seen the headlines, have read various
    reports on H1N1, or swine flu, cases, today's hearing is
    especially intended to review existing policies at key Federal
    agencies relating to employee precautionary behavior and the
    use of PPE, personal protective equipment. Entitled
    ``Protecting the Protecters: An Assessment of Frontline Federal
    Workers in Response to the H1N1 Outbreak,'' today's proceedings
    will provide our agency witnesses an opportunity to elaborate
    on their own respective responses to the H1N1 virus outbreak.
        And today's hearing also affords us the chance to enter
    into a dialog about the implementation of future policies that
    would govern and lay out the rights of frontline workers to
    access and don protective gear during a time of potential
    crisis. This is especially noteworthy since most of our medical
    experts express the opinion that, next fall, we could see a
    resurgence, or an echo of sorts, of the H1N1 virus but in a
    more lethal form.
        Be it the result of a public health emergency or a manmade
    disaster, since 9/11 our country, as a whole, has awakened to
    the need for ongoing emergency preparedness. Subsequently,
    Federal agencies have been charged with drawing up a variety of
    disaster scenarios so that our government can respond
    effectively and swiftly in time of crisis. However, all one has
    to do is recall the horrific events following Hurricane Katrina
    on the Gulf Coast to be reminded that much work in the area of
    emergency preparedness and continuity of government remains to
    be done.
        In addition to the work needed to ensure the public safety,
    it is essential that agencies implement adequate and uniform
    worker protection policies for the employees who protect the
    Nation as part of their daily duties.
        Amidst the general emergency response, planning efforts
    undertaken by agencies to safeguard the public, sufficient time
    must be devoted to develop and execute sensible policies aimed
    at securing the health and safety of the very employees who
    will be called upon to respond in the event of an emergency.
    Without such policies, not only is the health of frontline
    workers being put at risk, but the health of their families and
    the communities in which they live and the general welfare of
    the public is also placed at risk.
        In short, the Federal Government cannot ably respond to
    emergencies if the very personnel needed as part of that
    response are, themselves, compromised. Frontline Federal
    workers, their families, the communities where they reside and
    where their kids go to school deserve to be reassured that
    their employer, the Federal Government, which, in this case, we
    are responsible for, has done everything possible to guarantee
    their protection while on the job.
        I would like to thank the witnesses in advance for their
    willingness to appear and testify as we take a hard look into
    what is being done and what is not being done to keep our
    frontline Federal workers safe.
        This concludes my opening statement, and I now yield to our
    ranking member, Mr. Chaffetz.
        [The prepared statement of Hon. Stephen F. Lynch follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Chaffetz. Thank you, Chairman Lynch, for holding this
    important hearing on ``Protecting the Protectors: An Assessment
    of Frontline Federal Workers in Response to the Swine Flu
    (H1N1) Outbreak.''
        I also want to thank the witnesses for taking time out of
    their busy schedules to testify before the subcommittee, and
    appreciate your understanding and flexibility given the series
    of votes that we need to participate in. We do appreciate your
    time and your attention, your being prepared for this, and I
    want to thank you so much for your participation.
        As Federal workers across all sectors have been involved in
    the response to the medical emergency, it is crucial that the
    proper protocols are in place to protect these workers. The
    health of Americans depends on a healthy Federal work force. I
    hope our witnesses can give us insight into the current
    response to the H1N1 epidemic and help us assess where we have
    succeeded and where we have failed.
        As a result of the threats from SARS and the avian
    influenza, former President George W. Bush issued the National
    Strategy for Pandemic Influenza on November 1, 2005. The
    strategy guides the Nation's readiness and response to flu
    pandemics and has given direction to the Federal, State, and
    local governments on how to respond in the wake of the current
    H1N1 flu outbreak.
        A key part of the strategy, ``is to sustain infrastructure
    and mitigating impact to the economy and the functioning of
    society.'' That is exactly what we are here to talk about
    today.
        Although a pandemic cannot damage physical infrastructure,
    such as roads and powerlines, the way other catastrophic events
    might, it can cripple an organization through impact on the
    organization's human resources and prevent it from completing
    its essential functions. When that organization is the Federal
    Government, the consequences can be dire.
        Planning for the protection of Federal workers from illness
    and also for continuity of operations should a large enough
    number of employees get sick is essential. A strong Federal
    response to a pandemic is the key to mitigating the severity of
    the illness and loss of life and for the easing of potential
    devastating effects that an outbreak or pandemic flu can have
    on our Nation's economy.
        Personnel policies must reflect the twofold goal of keeping
    our Federal workers healthy and therein ensuring continuity of
    operations. Providing protective gear, updating telework and
    other social distancing policies, and implementing health
    information technology are valuable parts of the pandemic flu
    strategy. These tools allow Federal agencies to continue their
    important roles in responding to an emergency.
        Recently, it was brought to my attention that the
    Department of Homeland Security, while issuing written guidance
    to protect its employees, is not, in fact, executing the
    guideline on the front lines. Managers, I am told, are
    prohibiting Customs and Border Protection officers from wearing
    protective masks. Since our borders provide an opportunity to
    slow the spread of H1N1, we must ensure the health of our
    first-line defense: the Border Patrol agents, Transportation
    Safety Administration officials, and other law enforcement and
    health care professionals.
        Disturbed by this contradictory message from Department of
    Homeland Security, I, along with 19 of my colleagues, sent a
    letter to Secretary Janet Napolitano demanding immediate
    revocation of the prohibition on masks. Mr. Chairman, I would
    ask unanimous consent to submit the letter sent to President
    Obama and Secretary Napolitano into the record.
        Mr. Lynch. Without objection, so ordered.
        [The prepared statement of Hon. Jason Chaffetz and the
    information referred to follow:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Chaffetz. Thank you.
        It is a delicate balance we must strike between protecting
    our frontline employees and not causing mass public fear and
    alarm. I hope our witnesses can provide some answers as we look
    into the effect that this epidemic is having on our Federal
    work force.
        Again, I thank you for your appreciation and look forward
    to hearing from you.
        Thank you, Mr. Chairman.
        Mr. Lynch. The Chair now recognizes the gentleman from
    Virginia, Mr. Connolly, for 5 minutes.
        Mr. Connolly. Thank you, Mr. Chairman. And I want to thank
    you for holding this important subcommittee hearing.
        We must seize this opportunity to explore steps that we can
    take to protect the Nation from this or future pandemics.
    Ninety years ago, an influenza epidemic swept the world,
    starting here in the United States, killing approximately 50
    million people. Today, enhanced mobility means that other
    pandemics could spread even more quickly and more broadly.
        Federal, State, and local governments have made significant
    investments in emergency preparedness since September 11th. In
    my district, Fairfax County opened a state-of-the-art emergency
    operation center. Regionally, the Metropolitan Washington
    Council of Governments, whose emergency preparedness council I
    chaired until being elected to this job, has coordinated cross-
    jurisdictional emergency response planning with the goal of
    enhancing interoperability. The State of Virginia has pursued
    similar efforts.
        While those efforts have positioned us to respond to
    emergencies more effectively, we were focused more on response
    to a variety of attacks, perhaps, than events such as a
    pandemic. Since many levels of government have made substantial
    investments in both physical infrastructure and personnel for
    emergency preparedness, we must be able to identify efficient
    ways in which to ensure these existing facilities and networks
    can address both pandemics as well as terrorism.
        In addition to preparing our response to such pandemics, we
    need to take all possible steps to reduce the likelihood that
    they can occur. I am concerned, for example, that the
    widespread use of antibiotics in factory farms could be
    creating super-germs that would be resistant to medication we
    use in humans. While we do not know if there is any link
    between the use of antibiotics in factory farms and the swine
    flu, it is a timely reminder that our stock of antibiotics is a
    finite resource that we need to guard closely.
        I believe the Preservation of Antibiotics for Medical
    Treatment Act, introduced by our colleague, Representative
    Slaughter of New York, represents a thoughtful approach to
    protecting the potency of our antibiotics.
        Finally, Mr. Chairman, as the hearing brief made apparent,
    we need to take aggressive steps to protect our transit
    security employees from pandemics. It is unconscionable that
    TSA or Border Patrol or customs employees are not permitted to
    wear respiratory masks while interacting with thousands of
    travelers as a precaution to prevent the spread of diseases. I
    expect both agency witnesses and representatives of employee
    unions to tell this committee how we can rectify that problem
    immediately.
        I thank you again, Mr. Chairman, for holding these timely
    hearings.
        Mr. Lynch. Thank you.
        It is the custom of this committee to swear in witnesses
    for testimony. Would you please rise and raise your right
    hands?
        [Witnesses sworn.]
        Mr. Lynch. Let the record show that each of the witnesses
    has answered in the affirmative.
        Before I ask for testimony, we will do a brief introduction
    of the witnesses.
        Panel one: Mr. Thomas Galassi is Director of Technical
    Support and Emergency Management, Occupational Safety and
    Health Administration. Mr. Galassi is the Director of OSHA--
    excuse me--the Director of Technical Support and Emergency
    Management, where he is responsible for the emergency
    preparedness response activities and workplace safety and
    health guidance. As a certified industrial hygienist, Mr.
    Galassi serves as deputy director of the Directorate of
    Enforcement Programs, where he had oversight of Federal agency
    safety and health from 1999 to 2008.
        Dr. David Weissman, Director of the Division of Respiratory
    Disease Studies of the National Institute for Occupational
    Safety and Health, and holds board certifications in internal
    medicine, allergy, and immunology and pulmonary diseases. He
    has authored and co-authored more than 60 publications,
    primarily in the area of lung immunology, tuberculosis, and
    occupational lung disease.
        Ms. Nancy Kichak was named Associate Director of the Human
    Resources Policy Division at the U.S. Office of Personnel
    Management in September 2005. In this position, she leads the
    design, development, and implementation of innovative,
    flexible, merit-based HR policies. In 2003, Ms. Kichak was
    awarded the Presidential Rank Award of Distinguished Executive
    for extraordinary accomplishments in the management of
    government programs.
        Ms. Elaine Duke was confirmed as the Department of Homeland
    Security Under Secretary for Management on June 27, 2008. Ms.
    Duke is responsible for the management and administration of
    the Department, which includes directing the human capital
    resources and personnel programs for DHS's 216,000 employees.
    Additionally, she oversees the Department's $47 billion budget,
    appropriations, expenditures of funds, accounting, and finance.
        Welcome.
        Mr. Galassi, you have 5 minutes. Just as a general
    guideline, that box in front of you will keep track of your
    time. You have 5 minutes to summarize your written statement
    that has already been entered into the record. When the light
    turns yellow, you should probably sum up. And when the light
    turns red, your time has expired.
        Mr. Galassi, welcome.

     STATEMENTS OF THOMAS GALASSI, DIRECTOR, TECHNICAL SUPPORT AND
         EMERGENCY MANAGEMENT, OCCUPATIONAL SAFETY AND HEALTH
         ADMINISTRATION; DAVID WEISSMAN, DIRECTOR, DIVISION OF
          RESPIRATORY DISEASE STUDIES, NATIONAL INSTITUTE FOR
    OCCUPATIONAL SAFETY AND HEALTH, CENTERS FOR DISEASE CONTROL AND
     PREVENTION; NANCY KICHAK, ASSOCIATE DIRECTOR, STRATEGIC HUMAN
    RESOURCES POLICY DIVISION, U.S. OFFICE OF PERSONNEL MANAGEMENT;
         AND ELAINE DUKE, UNDER SECRETARY FOR MANAGEMENT, U.S.
                    DEPARTMENT OF HOMELAND SECURITY

                      STATEMENT OF THOMAS GALASSI

        Mr. Galassi. Chairman Lynch, Ranking Member Chaffetz,
    members of the committee, thank you for this opportunity to
    discuss the Occupational Safety and Health Administration's
    strategy for the protection of America's Federal workers from
    the new strain of Influenza A 2009-H1N1 virus.
        Before I begin my testimony, I want to express my gratitude
    for the many Federal workers who have responded so quickly to
    the current outbreak.
        It is clear that Federal agencies must be prepared for
    public health emergencies so that the Federal workplaces are
    not disrupted and the delivery of essential programs are not
    adversely affected. The full range of OSHA's training,
    education, technical assistance, enforcement, and public
    outreach programs will be used to help protect the Federal work
    force.
        Preparation is critical. OSHA has been engaged in efforts
    associated with the National Strategy for Pandemic Influenza,
    which directs all Federal departments and agencies to plan and
    prepare for a possible influenza pandemic. To support that
    effort, OSHA has published two guidance documents to help all
    employers, including Federal employers, better protect their
    employees and lessen the impact of a pandemic on society and
    the economy.
        Our guidance on preparing workplaces for an influenza
    pandemic includes an occupational risk pyramid for pandemic
    influenza to help employers select for their employees
    appropriate administrative work practices and engineering
    controls and personal protective equipment based on exposure
    risk associated with specific tasks.
        OSHA's current outreach efforts are aimed primarily at
    high-risk and very high-risk workers, those who have direct
    contact with infected individuals as part of their job
    responsibilities, such as health care workers and first
    responders.
        OSHA recognizes the importance of protecting health care
    workers, like those working at the Veterans Affairs, on whom
    this country will rely to identify, treat, and care for
    individuals with the flu. OSHA has issued pandemic influenza
    preparedness and response guidance for health care workers and
    employers which provides valuable information and tools about
    health care facility responsibilities during pandemic alert
    periods.
        OSHA is also developing guidance for employers on how to
    determine the need to stockpile respirators and face masks,
    along with fact sheets and quick cards written in English and
    in Spanish. The agency's Web site, www.osha.gov, contains
    comprehensive information dealing with a pandemic, as well as a
    link to the Federal Web site at www.panflu.gov.
        Federal agency heads play a central role in protecting
    their employees' safety and health. The Occupational Safety and
    Health Administration has broad requirements for agency heads
    to establish and maintain comprehensive occupational safety and
    health programs.
        As part of their programs, qualified safety health
    inspectors must inspect and identify hazards in the workplace
    and investigate accidents and employee complaints. Based on
    findings from investigations, agencies establish engineering
    and work practice controls and, where necessary, provide
    respiratory protection and personal protective equipment, as
    well as training on the use of respirators and how to get the
    respirator fit tested and to wear it properly, when to wear
    personal protective equipment, and how to properly put on and
    take off personal protective equipment.
        OSHA also performs inspections of Federal agency
    workplaces; enforces standards in a manner that is similar to
    the approach existing in the private sector, but Federal
    agencies are not penalized for noncompliance.
        As part of the 2009-H1N1 outbreak, OSHA has been fully
    engaged in Federal coordination on issues related to worker
    protections. OSHA is providing technical assistance to our
    Federal partners on general and agency-specific issues related
    to the health and safety of their staffs. I am confident that
    the numerous exercises we have carried out in emergency
    planning at both Federal and local levels since 2001 will pay
    off in our ability to work together in combatting this threat
    to the workplace.
        Mr. Chairman, I would characterize this situation for the
    Federal work force just as the President has described it for
    the Nation: ``cause for deep concern but not panic.'' I am very
    confident in the expertise of OSHA's medical, scientific,
    compliance assistance, and enforcement personnel. OSHA is
    prepared to address this threat and will protect our work
    force.
        I will keep you informed about OSHA's efforts to protect
    America's Federal employees from the current 2009-H1N1 virus
    and from pandemic flu exposure.
        [The prepared statement of Mr. Galassi follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Lynch. Thank you.
        Dr. Weissman, you have 5 minutes.

                      STATEMENT OF DAVID WEISSMAN

        Dr. Weissman. Good afternoon, Chairman Lynch and Ranking
    Member Chaffetz and other distinguished members of the
    subcommittee. I am Dr. David Weissman, Director of the Division
    of Respiratory Disease Studies at the Centers for Disease
    Control and Prevention. I genuinely appreciate this opportunity
    to speak to you today and update you on the current efforts
    that CDC is taking to respond to the 2009-H1N1 influenza
    outbreak.
        Providing frequent and informative communications about the
    outbreak is an important CDC priority. NIOSH is proud to be
    part of an aggressive response by CDC to understand the
    outbreak and to implement effective control measures. It is
    important to note that our Nation's current preparedness is the
    direct result of investments and support by Congress for
    pandemic preparedness and the hard work of Federal, State, and
    local officials all across the country.
        The 2009-H1N1 influenza virus is contagious and spreads
    from human to human. It spreads in a similar way as seasonal
    influenza, in that flu viruses are thought to spread mainly
    from person to person through coughing or sneezing by people
    with influenza. Sometimes people can get infected by touching
    something with flu viruses on it and then touching their mouth
    or nose or eyes.
        Surveillance has been ramped up around the country to try
    to get a better understanding of the magnitude of this
    outbreak, and we are actively tracking the progression of this
    virus globally. It is important that we continue to be
    vigilant. We need to be prepared for a possible return of this
    virus to the United States in the fall.
        CDC has and continues to develop specific recommendations
    for what individuals, communities, clinicians, and other
    professionals can do. Everybody has a role to play in limiting
    this outbreak. Individuals can take actions that will prevent
    respiratory infections. Frequent handwashing is something that
    we emphasize as an effective way to reduce transmission. Adults
    with flu-like illness should stay at home and not go to work.
    Children with flu-like illness should also stay home and not go
    to school or child care. And if you are ill, you shouldn't get
    in an airplane or any public transport to travel. Taking
    personal responsibility for these things will help reduce the
    spread of this new virus as well as other respiratory
    illnesses.
        During public health emergencies like the current outbreak,
    protecting workers, including Federal workers, is a top
    priority. Like all of us, workers can contract influenza
    through general community exposures. And some workers,
    especially health care workers and emergency responders, are at
    higher risk for infection because their jobs, by definition,
    bring them into repeated close contact with individuals who are
    ill with this virus. These workers represent a particularly
    high priority for prevention.
        NIOSH is leading a CDC team effort to minimize the effects
    of the outbreak on workers by developing and disseminating
    guidance on precautions to prevent transmission of the illness
    in the workplace. Our guidance is informed by the hierarchy of
    controls used to reduce exposure, including engineering
    controls like isolation, ventilation, and physical barriers;
    administrative and work practice controls, like social
    distancing and telecommuting, hand hygiene and cough etiquette;
    and personal protective equipment, like gloves, glasses, gowns,
    and respiratory protective devices.
        As the outbreak evolves, specific guidance on the
    appropriate use of these controls is guided by our evolving
    understanding of the outbreak and the level of evidence
    supporting the effectiveness of the various controls.
        As part of the larger CDC response, we fielded questions
    and provided assistance to other Federal agencies responding to
    this influenza outbreak. For example, soon after the start of
    the outbreak, the Department of Homeland Security contacted us,
    and we helped them develop infection control measures to
    protect their most at-risk employees. We have continued to be
    in communication with DHS as the outbreak has evolved. We have
    also provided information to the U.S. Postal Service, the
    Department of Defense, and the U.S. General Services
    Administration to help them protect their employees from the
    virus.
        As we learn more, CDC will evaluate its guidance and update
    it as appropriate and will continue to work with other Federal
    agencies to provide the best and most current possible guidance
    for Federal workers.
        In closing, we are working hard to understand and control
    this outbreak and to keep the public and the Congress fully
    informed about the situation and our response. We are working
    in close collaboration with our Federal partners, including our
    sister HHS agencies and other Federal departments.
        Even if this outbreak proves to be less serious than we
    might have initially feared, we must anticipate the possibility
    of a subsequent or follow-on outbreak several months down the
    road. While we must remain vigilant, it is important to note
    that at no time in our Nation's history have we been more
    prepared to face this kind of challenge.
        We look forward to working closely with you to address this
    evolving situation as we face the challenges in the weeks and
    months ahead.
        Thanks again for the opportunity to testify before you, and
    I will be happy to answer any questions that you have.
        [The prepared statement of Dr. Weissman follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Lynch. Thank you, Doctor.
        Ms. Kichak, welcome.

                       STATEMENT OF NANCY KICHAK

        Ms. Kichak. Thank you. Chairman Lynch, Ranking Member
    Chaffetz, and members of the subcommittee, thank you for
    including the Office of Personnel Management in your discussion
    of this important topic. I would like to share with you our
    efforts to ensure the Federal Government is prepared to meet
    the human resources management challenges posed by the recent
    H1N1 flu outbreak as well as any future pandemic health crisis.
        Our essential function in this regard is to provide
    critical human resources services to ensure the Federal
    Government has the civilian work force it needs to continue
    essential missions in an emergency. These include emergency
    staffing authorities, leave flexibility, evacuation payments,
    telework, and flexible working arrangements.
        We are continuously preparing for an influenza pandemic by
    developing and updating comprehensive human resources guidance
    and conducting briefings for Federal human resource
    specialists, as well as town hall meetings for employees at
    numerous Federal agencies.
        It is not possible to overstate my concern and that of OPM
    Director John Berry that we do everything necessary to protect
    the well-being of all Federal employees. However, we at OPM do
    not have the expertise to make judgments about the efficacy and
    appropriateness of certain medications and protective devices
    to frontline workers. Therefore, we have tried to keep Federal
    agencies apprised of the latest expert advice on these issues.
        For example, at the H1N1 Human Resources Readiness Forum we
    hosted last Friday, we made available representatives of the
    CDC, OSHA, and the Federal Occupation Health Service in the
    Department of Health and Human Services to answer questions
    about personal protective measures. The forum focused on
    pandemic influenza readiness for human resources directors,
    Federal employee union leaders, and other interested parties.
    OPM and other panelists answered the questions that weigh most
    heavily on the minds of managers and employees when they think
    about how a pandemic health crisis will affect them.
        One tool that can be extremely useful in coping with a
    pandemic health crisis is telework. It can help mitigate the
    spread of influenza by promoting social distancing while
    allowing the critical work of the Nation to continue. OPM
    Director John Berry recently announced a new initiative that we
    hope will help agencies ramp up their telework readiness. This
    initiative is driven not only by Director Berry's belief in the
    value of work-life programs generally but, more specifically,
    in the importance of telework as a tool for emergency planning.
        Under the director's telework initiative, we will convene
    an advisory group of telework program managers to formulate
    standards for agency telework policies, which we have asked
    agencies to submit to OPM for our review. Each agency has been
    asked to appoint a telework managing officer and to ensure
    their existing appeals process is transparent to employees.
        Finally, we will work with Congress to assure the provision
    of high-quality, broadly accessible telework training that will
    provide the baseline everyone needs to achieve success.
        With implementation of this initiative, we believe we will
    see not only an improvement in the consistency and quality of
    telework policies but also an increase in participation in
    telework.
        Employees who telework regularly and effectively under
    normal circumstances are well-positioned to continue to work
    from home during any type of emergency. Our pandemic planning
    provides that employees who are not currently teleworking
    certainly may be able to telework during an emergency. However,
    experienced teleworkers have the necessary equipment, computer
    connectivity, and practice working from a remote location that
    will enable them to continue critical work during an emergency.
        The current outbreak reminds us we must always be prepared
    to take care of our employees while continuing to meet the
    needs of the Nation. Federal agencies need to ensure their
    pandemic plans are up-to-date. They should make sure they have
    telework agreements with as many telework-eligible employees as
    possible and should test employees' eligibility to access
    agency networks at home, as well as their procedures for
    communicating with employees who are teleworking. OPM stands
    ready to provide guidance and support.
        Thank you for inviting me here today. I would be happy to
    respond to any questions.
        [The prepared statement of Ms. Kichak follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Lynch. Thank you.
        Secretary Duke.

                        STATEMENT OF ELAINE DUKE

        Ms. Duke. Thank you. Good afternoon, Chairman Lynch,
    Ranking Member Chaffetz, and members of the committee. Thank
    you for the opportunity to come before you this afternoon and
    discuss how the Department of Homeland Security is preparing
    and protecting its employees in response to the 2009-H1N1 flu
    outbreak.
        I recognize that, as a department, we must work together to
    take proper safety precautions to reduce transmission of any
    disease while still performing our critical mission. This may
    mean that some employees need to wear personal protective
    equipment. Some employees may need to telecommute. Others may
    need to stay home if they have illness in their family or if
    their child's school is closed.
        I am committed to working with the component heads
    throughout the Department and across the Federal Government to
    provide our employees with the safest possible working
    environment. Our work force's safety and security is always a
    top priority.
        It is important to know that we are making all of our
    decisions based on the science and epidemiology as recommended
    by the Centers for Disease Control and Prevention, the
    workplace guidance from the Department of Health and Human
    Services, the OSHA office, the public health community, and the
    World Health Organization.
        Planning for a pandemic has been ongoing for several years.
    In fiscal year 2006, the Department was able to build the basis
    of its pandemic program. We began purchasing personal
    protective equipment for use by mission-essential employees.
    Currently, personal protection equipment is pre-positioned at
    53 DHS locations and field offices nationwide.
        The Department has also stockpiled two types of antivirals,
    the trademarks Tamiflu and Relenza, dedicated for DHS work
    force protection. DHS has on hand approximately 540,000 courses
    of antivirals targeted for its mission-essential work force.
    Guidance on the use of those antivirals has recently been
    published.
        Another element of planning the work was done in 2006
    through several planning documents, including a DHS Pandemic
    Influenza Contingency Plan; publishing ``Screening Protocols
    for Pandemic Influenza--Air, Land, and Maritime Environments'';
    the Draft Federal Interagency Pandemic Influenza Strategic
    Plan; and the National Strategy for Pandemic Influenza
    Implementation Plan.
        And we have exercised these plans. In October 2008, DHS
    conducted an interdepartmental pandemic influenza table-top
    exercise. The purpose of the workshop was to facilitate in-
    depth discussions and highlight potential actions addressing
    departmental work force protection during the pandemic
    influenza event. All DHS components were represented, along
    with 13 other Federal departments and agencies, with a total of
    100 participants.
        Effective communication in any disaster is critical, and a
    severe pandemic where there would be nationwide consequences is
    no exception. DHS has made communication from the Secretary
    through the rest of leadership and through the components a top
    priority. Guidance was issued by headquarters officials and
    components, advising our employees to follow procedures and
    recommendations of the CDC, and we have consulted with
    Department of Labor's OSHA's office regarding work force
    protections.
        Training has also been crucial for preparing DHS work force
    in the event of a pandemic. The Office of Health Affairs within
    DHS developed pandemic awareness training, and this is on DVD
    and available to all our DHS components. Additionally, some
    components, such as ICE, Immigration and Customs Enforcement,
    have further developed training.
        The Department is taking several steps to ensure continued
    responsiveness to the components' request and to ensure the
    health and safety of our DHS work force. Moving forward, one of
    our goals is to provide uniform occupational health services
    across the Department in order to ensure operational components
    can deliver post-exposure prophylaxis and treatment of
    employees more effectively in the future.
        In addition, we hope to strengthen our internal medical
    oversight capacity, ensuring DHS fully utilizes the
    capabilities of our medical personnel in health affairs as well
    as our emergency services medical personnel. Finally, our
    Health Affairs Office has been developing a formal mechanism
    for providing medical advice to DHS components.
        In conclusion, DHS remains dedicated to protecting the
    health and safety of our work force in the event of a pandemic
    and during this recent H1N1 outbreak. I will continue to work
    closely with Secretary Napolitano and our component heads to
    respond to the needs of the DHS employees throughout this
    outbreak and in the future. As I said, our work force safety
    and security is a top priority.
        Thank you for holding this hearing, and I look forward to
    your questions.
        [The prepared statement of Ms. Duke follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Lynch. Thank you.
        As is often the case in Congress, we are required to be in
    several hearings at one time. And the ranking member, Mr.
    Chaffetz, has asked to be excused so he can go into another
    hearing where he is also questioning some witnesses.
        Let me begin by saying thank you to all of you for your
    willingness to appear before the committee.
        Let me try to collapse the issue, because the scope of
    proper protection for all Federal employees may be a bit
    overbroad for this one hearing. I do have some major concerns
    with, principally, the 50,000 TSA workers who are responsible
    for protecting our country and our security in their own way,
    as well as I believe we have 40,000 Customs and Border Patrol
    officers.
        Just to give you a snapshot of what my concern focuses on,
    a full-time transportation security officer [TSO], works an 8-
    hour shift. Individuals working the split shift have a 10-hour
    shift: 4 hours on, 2 hours off, 4 hours on.
        And depending on the size of the airport, a typical TSO
    would come into contact with anywhere between 500 and 2,000
    individuals in one shift. Data for selected larger airports, as
    well, for instance, at Miami International Airport, TSOs
    probably clear about 3,300 passengers per shift. At JFK, it is
    about 9,000 passengers that they come into contact with daily.
        And we are talking about wanding them, checking their bags,
    checking identification, basically hands-on, literally, so that
    they have physical contact with these individuals--9,000 per
    checkpoint per shift. That is in New York. And at Chicago
    O'Hare, it is between 9,000 and 12,000 per checkpoint per day.
    So you have a lot of hands-on contact by these folks.
        Customs and Border Patrol officers, those shifts are also 8
    hours. Although, I know from talking with them, they work a lot
    of overtime because of the demands of the job, which, can be a
    12- or 16-hour shift for those folks. And a typical--I am
    talking about the average--Customs and Border Patrol officer
    would see between 1,000 and 2,000 travelers per shift.
        The situation we just had--and I don't want to do too much
    looking back, because I think, as all of you have noted, we are
    worried about the next iteration of this flu, and that could be
    in the coming fall or at some time in the future. But there are
    lessons to be learned by looking back.
        And I have received hundreds of phone calls, as the
    chairman of this committee, affidavits, letters, and e-mails
    about the way our security personnel, Customs and Border Patrol
    and TSOs are being treated. And the plain fact of the matter is
    that there has been a concerted effort to deny these employees
    the right to have a mask--an N95 mask, to be more specific. But
    it boggles my mind, quite frankly, that DHS has not come up
    with a written guidance for addressing the issue of voluntarily
    wearing protective masks.
        Now, these folks, as I said, have high contact. You know, I
    got a lot of feedback from my folks on the Mexican border, and
    I have to have some empathy for their position. If you look at
    the numbers of H1N1 cases in the border States of Texas,
    Arizona, and California, the incidence of swine flu in those
    States is probably 400 percent of what the national average is.
    So there is an issue here, and it is empirical, what we are
    seeing. So we have an issue with the Mexican border and a
    heightened concern and a heightened exposure for those folks.
    And I have affidavits from a number of officers, from Laredo to
    Otay checkpoint, where they were told to take that mask off.
        And, you know, Madam Secretary, I just want to ask you, No.
    1, why don't we have a written guidance from DHS regarding the
    voluntary use of masks? Why are your managers and officials
    telling folks to take those masks off when they, on the ground,
    feel that is a necessary protection that they need? And I would
    like to hear your response to that.
        Ms. Duke. Mr. Chairman, thank you. And we do, at DHS, agree
    that from each one of these instances there are lessons
    learned. And we did issue the policy, as you know, about
    mandatory use, which comes into the high-risk category under
    the OSHA prescription----
        Mr. Lynch. Let me just interrupt you, because I don't want
    you just blowing through there. That is a guidance for
    mandatory use of masks. And what you say in your guidance is
    that when an officer specifically knows or suspects that an
    individual has swine flu or is ill, then they are supposed to
    put on the mask if they are within six feet of that person.
        The problem here, as you probably can guess, is that there
    is a 7-day incubation period, No. 1. No. 2, you have to get
    close enough to these folks to do your job anyway, so you are
    already inside 6 feet. And as smart and as capable as my
    Customs and Border Patrol and my TSOs are, none of them are
    doctors, and so they are going to have to make a determination
    that this person is ill. So that guidance on mandatory mask
    wearing is virtually useless to someone on the ground doing
    this work.
        And, again, I ask you about the guidance on when an officer
    or an agent may decide or may be allowed to use a mask, because
    I see nothing on that. So if you could address that point.
        Ms. Duke. Yes. We looked at the category of potentially
    medium-risk employees, which would indicate a voluntary use of
    mask. We followed the medical evidence given to us by CDC's
    review of the H1N1 virus. And, based on the medical evidence,
    we determined that there was not a need for policy at this
    time. It is something that we continue to look at each day as
    the statistics and the data for this round of H1N1 proceed and
    the potential next round that follows.
        Mr. Lynch. Wait a minute. You are telling people, if you
    know or suspect specifically an individual person has H1N1 or
    is ill, to wear the mask.
        Ms. Duke. Yes.
        Mr. Lynch. And you are saying that apart from that
    determination, that a person doesn't have the right to use the
    mask?
        Ms. Duke. There is no medical indication that it would be
    appropriate to wear the mask in the workplace based on the job
    requirements, the way H1N1 has progressed through the
    population this first phase.
        Mr. Lynch. You have to do this before the fact though. You
    are saying now that it has progressed, you don't warrant it. It
    just doesn't hold water, that whole argument. You know, you are
    telling people, wash your hands, cover your mouth when you
    cough, stay home when you are sick. But these folks are on the
    frontlines. You don't think this is a high-risk situation when
    you have these folks screening hundreds, if not thousands, of
    travelers coming in from, in this case, Mexico, where we had a
    very high number of cases already reported?
        Ms. Duke. I think it is critical--and we heard what our
    employees said, and we continue to evaluate it. To really
    warrant wearing masks in the workplace, there has to be a
    high--a reasonable probability that the employees are going to
    encounter the sicknesses in their line of duty. And based on
    the medical evidence, I know I have said that before, but I
    keep having to go back to it, we consulted with experts, and it
    did not seem appropriate.
        Wearing masks is not a neutral physical condition. There
    are risks with it, with certain populations, in wearing the
    respirators. Additionally, there are other personal protection
    and equipment, such as the frequent washing of hands, the
    social distancing, where you can.
        Mr. Lynch. These workers were not even allowed to use
    sanitizers. Apart from the masks, they also report that they
    weren't allowed a chance to go wash their hands or use
    sanitizers. They were kept on the line. They weren't allowed to
    have breaks. So here you have somebody who is checking maybe
    thousands of people. I would hate to be the thousandth person
    in line after this person has already wandered and checked a
    thousand people coming through from Mexico, and this whole
    volume of people is continually coming through, and this person
    is not allowed to disinfect from one shift to another. And that
    troubles me greatly.
        Ms. Duke. My understanding is that TSA did change protocols
    on the cleansing of bins.
        But I will check into that, Mr. Chairman.
        Mr. Lynch. I am going to let Mr. Connolly say a few things.
    We are going to come back to this again.
        Look, I am not satisfied with your answer. I am not as
    satisfied with the policy that DHS has adopted for their
    employees. I think the decision should be made on the ground,
    and your guidances have been totally nonresponsive to this
    situation of voluntary use of masks where these individuals
    feel they need to. And I am receiving nothing here. You are
    going to continue to evaluate?
        Ms. Duke. Absolutely.
        Mr. Lynch. That is not good enough. That is not good
    enough. We will legislate. If that is what I have to do to get
    the permission for my Federal workers to wear masks on the
    Mexican border in the middle of an epidemic, a pandemic, or the
    threat of one; if I have to legislate that they have the right
    to wear masks to protect themselves and their families and
    their communities, that is what I will do. But I shouldn't have
    to do that. I shouldn't have to blow up the bureaucracy just to
    get something done.
        This is a simple issue. This is a really simple issue.
    Protect these workers that are protecting us. They are
    screening thousands of people coming in. If they are infected,
    what about the exposure of those other passengers? What about
    the exposure of their families? What about the exposure to
    their kids? What about the exposure to the towns in which they
    live?
        And you look at the numbers in Texas, Arizona, and
    California, and like I say, they are four times the national
    average. It is not an immigration thing; it is just a
    commonsense thing, that we are trying to protect these workers.
        And I find your response and the position of DHS
    unacceptable. It just doesn't work. Your excuses are lame. And
    you are saying that you are following the medical evidence.
    This is common sense.
        This is common sense. In my prior job I used to have to
    wear a respirator as a welder. It is not a comfortable thing.
    It is not something that someone is going to leap to do. If
    they feel it is necessary, they will put the mask on. It is
    hot. It is stuffy. It is not something that people enjoy doing,
    so there is almost an inclination that people won't wear them.
    But when these workers feel that they are at risk, and they
    need that protection, well, we ought to provide that. We are
    supposed to be an example, the power of example, the Federal
    Government as an employer.
        These are very brave people. These are good people. These
    are hard workers. And we should be taking care of them the way
    they are taking care of the American people, and I don't think
    that is being done right now. I really don't. And I think this
    bureaucracy, this back and forth about agencies, they said
    this, forget that stuff. Let's just get it done. Let's get
    these masks to the employees. Let them use it when they deem it
    necessary. Let them protect themselves, and let's move on.
        The ranking member is back.
        So, Mr. Connolly, I am going to defer.
        Mr. Chaffetz, you are recognized for 5 minutes or whatever
    time you may consume. I overwent my 5 minutes while you were
    gone.
        Mr. Chaffetz. I will be brief. And my apologies for missing
    the first portion. I had a similar hearing next door. I
    appreciate your understanding.
        My questions are for you, Ms. Duke, because I concur with
    the chairman here on this. This is not acceptable. You said in
    your testimony that safety is your top priority. Do you believe
    that the actions of the Department of Homeland Security are
    consistent with that testimony that you gave?
        Ms. Duke. I do believe that as we took our actions, we had
    the safety of our employers in mine.
        Mr. Chaffetz. What is the policy? What should have happened
    versus what happened? I mean, why weren't they allowed to wear
    masks if they so choose? I mean, we were in a medical
    emergency. Right? Were we not?
        Ms. Duke. Yes, we were.
        Mr. Chaffetz. What is the written standard? What is the
    policy? What should have happened per the guidebook? Is the
    guidebook wrong?
        Ms. Duke. By the guidebook, I will take that as meaning the
    OSHA policy, we are supposed to analyze the risk of employees.
    And based on the categorization of the risk to the employees,
    based on the threat, their work situation, either prescribed
    mandatory usage, voluntary usage, or----
        Mr. Chaffetz. So are you saying that at that stage, it had
    not kicked into the voluntary, voluntary compliance or
    voluntary usage of the mask would not have kicked in at that
    stage?
        Ms. Duke. We discussed voluntary usage of the masks. The
    H1N1----
        Mr. Chaffetz. Who made the decision not to allow that to
    happen? And what was the underlying reason that they weren't
    allowed to?
        Ms. Duke. The underlying reason was, when we consulted with
    the medical experts within the Federal Government, including
    CDC, that it was not warranted nor necessary.
        Mr. Chaffetz. So it wasn't warranted or necessary. And who
    made that ultimate determination?
        Ms. Duke. I would have to say the Secretary of Homeland
    Security.
        Mr. Chaffetz. Now, you said this is based on science. But
    everything I have read and heard said this is based on
    proximity; and that there needs to be a certain amount of
    distance; and that by ultimately touching or coming in contact
    and all of that. I just find it absolutely unacceptable, that
    our Federal workers were not allowed, if they so choose, to don
    things that would protect them from the very--the world is
    looking at this as a pandemic.
        We look at the possibility of this spreading, moving
    northbound. I just am dumbfounded that the Department of
    Homeland Security would not take and put, as you say, safety as
    its top priority. I find nothing in the evidence to suggest
    that this was the right move. The written policies need
    adjustment. I would hope that you would return to this
    committee and that the Homeland Security would return to this
    committee and demonstrate that, truly, safety is the top
    priority. Because I see nothing that would exemplify that.
        I think this is also something we should note in terms of
    culture. I spent quite a bit of my career in Asia. It is
    commonplace. If you have a cold or you are somewhat sick, you
    wear a mask, and nobody thinks a second of it; maybe a
    Westerner who has been there for the first time. I remember the
    first time I saw it. But people become very accustomed to it.
        I find a great discrepancy between your insistence that
    safety is the top priority, and that what we went through and
    are going through at the border and with our TSA employees and
    a host of other Federal workers to go through this. I find it
    totally unacceptable. I concur with the chairman here.
        I just want to ask one other thing of, pardon me for how
    you pronounce your name, Ms. Kichak. What sort of drills or
    what sort of training or what sort of preparation is there that
    actually happens for these types of things, and specifically as
    it relates to the whole telecommuting? Because we could have
    very quickly had to get into a scenario as it relates to
    telecommuting, and I wonder how well we would be prepared in
    order to execute on that.
        Ms. Kichak. Well, each agency has been encouraged, and as I
    have said, we have done----
        Mr. Chaffetz. If you could use the microphone.
        Ms. Kichak. Each agency is encouraged to practice, and we
    have done town halls suggesting this. I know OPM has run
    several drills where we have sent a good segment of our work
    force home. And those are not people who normally telework, but
    we have sent them home to try to work for 3 or 4 days. We want
    to see what it is like for more than just an afternoon to try
    to get your work done, so that people get a sense of what it is
    like. And so that is the kind of drilling we have done.
        Mr. Chaffetz. How prepared are we for that? If zero is
    nothing and 100 is perfect, where are we on that scale?
        Ms. Kichak. As far as practicing telework is concerned,
    based on the low numbers of teleworkers today, I would put us
    on a four.
        Mr. Chaffetz. Out of 100?
        Ms. Kichak. No, Out of 10. I am sorry.
        Mr. Chaffetz. Maybe 40?
        Ms. Kichak. Yes. I think one thing that we are learning is
    that you have to practice and then practice and then practice,
    because your connectivity changes. You do it and you do it, and
    6 months later, it is out of date, and you have to do it again.
        Mr. Connolly. Would my colleague yield?
        Mr. Chaffetz. Sure.
        Mr. Connolly. Ms. Kichak, you gave it a 4 out of 10. What
    percentage of Federal work force currently teleworks?
        Ms. Kichak. Six percent on a routine basis.
        Mr. Connolly. So 40 percent is really grading on a curve.
        Mr. Lynch. At this point, the Chair would like to recognize
    the gentleman from Virginia, Mr. Connolly, for 5 minutes.
        Mr. Connolly. Thank you.
        Ms. Duke, if I could go back to you just for a minute,
    because I want to followup on the comments of the chairman and
    the ranking member, and I associate myself with them. I guess
    the problem I have, and I suspect my colleagues do as well, is
    you keep on harping back to, there is no medical evidence that
    would justify the use, the voluntary use or mandatory use, of
    masks, which, that statement would imply there is some medical
    threshold by which you measure that would kick in the use of
    masks. And I guess I would like to know what that medical
    threshold is if there is such a medical threshold in DHS's
    mind.
        And I guess, from our point of view, and the chairman used
    the phrase common sense; you have to differentiate, it seems to
    me, the nature of the job. If I am a transit operator behind a
    glass panel, and I never have human contact during the course
    of my 8-hour workday, that is one thing.
        On the other hand, as the chairman indicated, if you are a
    TSA worker, you are patting people down, increasingly you are
    engaged in near strip searches. You are exposed to all kinds of
    things. You are dealing with hundreds of people. And let's say
    you are in El Paso and you are dealing with a lot of Mexican
    travelers, and the epicenter of this epidemic was in Mexico.
        Why wouldn't we, just as a matter of prudent and reasonable
    prophylaxis, say to those workers, if you feel more comfortable
    wearing a mask, guidance is have at it? You don't want to, you
    don't have to; we are not in a mandatory mode. But if that
    makes you feel safer and gives you a comfort level of going to
    work and a comfort level extended to your family, why in the
    world wouldn't we encourage that or allow that?
        Ms. Duke. Mr. Connolly, I guess a couple parts to your
    question.
        First of all, on the mandatory use, the standard for that
    is that an employee is in the high risk, and that is a known or
    a probable case. So if, for instance, a Border Patrol agent
    believes that a traveler has, is exhibiting symptoms, and they
    decide they are going to refer the case, call in CDC, then that
    would fit in as an example of fitting into the high-risk
    category.
        DHS has not issued, just to clarify maybe my previous
    answers, we have not issued a policy to prohibit the use of
    masks at the Department level. What we have relied on during
    this first phase of the epidemic is individual judgments based
    on the specific scenario. And so there was not a prohibition at
    the Department level of wearing of masks.
        Mr. Connolly. If I may interrupt you there, that is
    contradictory to the evidence presented to this committee. We
    are hearing from the work force quite the opposite; that, as a
    matter of fact, there is a general broad prohibition against
    voluntary use of the masks, that they are not permitted to do
    it, specifically at DHS.
        Ms. Duke. We have not--I know emphatically, and I will
    check throughout the components, that we have not issued any
    guidance that prohibits the use of masks.
        Mr. Connolly. Well, that is good to know, Mr. Chairman. And
    I am sure it will come as a relief to the work force.
        Mr. Lynch. Let me followup on Mr. Connolly's question. You
    have given permission to Customs and Border Patrol agents--
    agents, not officers--to wear the masks. They all wear the
    masks, voluntarily. I am sorry, Border Patrol. So those agents,
    those Border Patrol agents, under the instruction of your
    managers, your officers, they are all allowed to use the masks
    voluntarily, and they do. So, you see what I am saying?
        Your own policy for them is, wear the masks. That is
    completely voluntary for them. And they don't have any, let's
    say, medical or clinical distinction from the exposure being
    experienced by the other officers as well. And so you have some
    great inconsistency here.
        I also want to just share, I have a bunch of these
    affidavits that have come in from different officers all over
    the country. But this is one case, this is Kenneth Eagan. He
    actually took this serious enough to file an affidavit, a sworn
    statement under the penalties of--pains and penalty of perjury.
        He says, I am employed by the U.S. Bureau of Customs and
    Border Protection. I am currently assigned to the Las Vegas
    port of entry, an airport. On Monday--and he says, my assigned
    duties include processing inbound passengers, and I regularly
    come into contact with members of the traveling public arriving
    from Mexico, and those contacts routinely require contact
    within 6 feet of those individuals.
        He goes on to say that on Monday, April 27th--this is right
    around the time that this first became apparent, I think it was
    the 22nd. So this is 5 days into the crisis--I was scheduled to
    work primary inspection booth eight from 9:30 to 5:30. After I
    set up in the booth, I began processing passengers. I put on my
    protective gloves and the N-95 mask.
        And this is what an N-95 mask--not anywhere as fearsome as
    the mask I used to wear as a welder. This is like a little dust
    mask. I don't know how that would alarm the public.
        Anyway, he said, I donned my gloves and my N-95 mask. The
    first two flights of the day were from Mexico, and one was from
    Mexico City, which is the epicenter of the swine flu outbreak.
    During the second flight, Mexicana Flight 986, arrived from
    Mexico City. Chief Gonzalez, his superior, came to his assigned
    booth and blocked the aisle so no new passengers could
    approach. The other supervisor, Mr. Campbell, blocked the booth
    door behind him.
        I was processing a passenger at the time, and Chief
    Gonzalez interrupted the inspection, ordered me to remove the
    mask. He said, take the mask off now; you are not authorized to
    wear a mask.
        He goes on to say, I finished the processing of the
    passenger and removed the nitrile gloves, used hand sanitizer
    to clean his hands, and then removed the N-95 mask.
        He said, 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 in
    front of me was showing obvious signs of the flu, as had been
    explained in a muster briefing.
        He said, I told Chief Gonzalez that if I waited for someone
    to hack or cough on me, it would be too late for the mask to
    provide protection against exposure.
        I've got a lot of these. This is from Lilia Pineda, who is
    also a U.S. Border and Customs Patrol Protection Department of
    Homeland Security, San Diego. Her assignments again were
    processing inbound passengers, vehicles, and pedestrians. So
    this is a lands checkpoint.
        Mr. Bilbray. The largest lands checkpoint in the world.
        Mr. Lynch. There you go.
        On or about April 28, 2009, Lilia Pineda was working at
    Otay Mesa, primary lane four, and decided to wear an N-95
    respirator mask. I had made this decision for several reasons.
    I had been fitted for an N-95 respiratory mask. I was
    encountering--I had also been trained to fit other Customs and
    Border Patrol officers for that mask. I was encountering
    individuals who were coming in from Mexico City and other
    cities in Central Mexico where the swine flu was prevalent. I
    also had a cold at the time, and I thought I was especially
    vulnerable to getting another illness. I was also concerned
    about exposing other members of my family.
        At approximately 9:30, while wearing an N-95 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 the
    respirator fit test trainer, and that I felt it was a health
    and safety issue for me to wear the mask that I had been fitted
    for. Despite my objection, the chief refused to allow me to
    wear the mask. He repeatedly asked me angrily, with his hands
    at his hips, saying, are you going to comply, or do you want to
    go home sick?
        There are a lot of these affidavits that clearly indicate
    from various parts of the country that there is a concerted
    effort on the part of DHS not to let these employees wear the
    masks. And while you say that you don't have any policy that
    says you can't wear masks, your people on the ground, your
    managers, the people who work for you are telling these workers
    they can't use the mask. So, what do you say to that? And it is
    all around the country, so it is not an isolated case.
        Ms. Duke. What I would say to that is that, during the
    first round of H1N1, we did, consistent with OSHA--and I am
    going to explain--allowed decisions to be made by individual
    supervisors based on their assessment of risk. What we heard
    back from the employees is that created at least a perception
    of inconsistency with DHS.
        Mr. Chairman, you mentioned some people were wearing masks.
    So the inconsistency.
        So what we are looking at right now is, should that
    practice continue? Should it be individual site-specific first-
    line supervisor discretion? Or, especially if there is another
    round of H1N1 in the fall, should we look at risk from the
    Department and ensure consistency in our work force?
        Mr. Lynch. That is too late, as far as I am concerned.
        I am going to yield 5 minutes to Mr. Bilbray.
        Mr. Connolly. Mr. Chairman, I hadn't quite finished my----
        Mr. Lynch. I am sorry.
        Mr. Connolly. And I know we have to vote. If Mr. Bilbray
    would indulge me on just one issue.
        Mr. Lynch. Sure. Go ahead.
        Mr. Connolly. And I just wanted to say, Mr. Chairman, and I
    certainly associate myself with your remarks.
        I was very heartened by Ms. Kichak's comments on telework,
    and I was very impressed with Mr. Berry's--we had a press
    conference up here, and he was kind enough to provide several
    of us who have introduced legislation, H.R. 1722, to promote
    telework in the Federal Government. And, really, it is nice to
    have a partnership on this subject.
        But I think telework, Mr. Chairman, is essential to any
    kind of continuity-of-operations plan in the Federal
    Government. In fact, it is essential for the private sector as
    well.
        And, Mr. Chairman, I would ask that at some point this
    subcommittee may want to consider hearings and a markup of H.R.
    1722 so that we can help codify progress within the Federal
    ranks to ensure that telework is formally an option for our
    Federal work force.
        I thank the Chair.
        Mr. Lynch. I thank the gentleman.
        The Chair now recognizes Mr. Bilbray from California for 5
    minutes.
        Mr. Bilbray. Thank you, Mr. Chairman.
        Ms. Duke, I was in local government long enough to know
    when I hear somebody wordsmithing. It is not an official policy
    of the Department, but it was an open opportunity for local
    supervisors to deny the employee the free choice to wear this
    or not. Is that a fair explanation of your term, ``there is no
    policy, Department policy, against it?''
        Ms. Duke. I guess I am not sure by free choice. I mean, the
    employer has to manage the workplace and determine if it is
    appropriate. So, in this case, we did exercise that free
    choice--excuse me, we did exercise discretion in managing the
    workplace, and some employees were not allowed to wear their
    masks in the workplace we learned over the last 2 weeks, yes.
        Mr. Bilbray. My question to you, are you aware of any more
    exposure that somebody at the land entries would have as
    opposed to somebody at the airport entries?
        Ms. Duke. Well, the evidence indicates that we have very
    few instances of DHS employees in general having confirmed
    cases of the H1N1.
        Mr. Bilbray. For the record, Mr. Chairman, I think that it
    is essential that those of us along the Frontera point out,
    that, unlike the airports, people do not fly into the United
    States specifically to get free medical care, but one of the
    realities of the Federal mandate of free medical care in this
    country is that people that are outside the country that want
    to receive free medical care along the Frontera just have to
    get in their car and drive across the border and present
    themselves with their illness.
        And one of the issues that has not been discussed is the
    increased exposure of our men and women at the land port of
    entries, because of the attractive nuisance of or the situation
    of actually encouraging people to come into the United States
    who are showing symptoms because they can get treated for free
    in the United States. And so the men and women along our port
    of entries are exposed that much more than not only the general
    public but also even more than their colleagues that would be
    handling flights coming in to an airport. And I want to make
    that clear so that we understand what kind of situations are
    along the border.
        Now, the issue of the primary and secondary, were the
    secondary people allowed to wear masks at a time that the
    primary was denied?
        Ms. Duke. I know of no such policy.
        Mr. Bilbray. I was informed there was. Anybody got any? You
    know, the discussion I had, a 6-foot barrier reminds me of some
    kind of dancing rule in our cabaret licenses in government. My
    question to you is, are you aware of the procedure that they
    would go? Anybody want to talk about that? The 6-foot to me
    sounds absolutely absurd, as somebody who grew up crossing that
    border. The primary inspector is at a window. He specifically
    makes contact with the driver, then proceeds to make contact
    with every member in that vehicle, which usually means placing
    his or her head into the vehicle to be able to hold that
    conversation. To even discuss the 6-foot for primary is
    absolutely absurd. We are talking about face-to-face
    discussions going on, and then for a 6-foot issue to come up,
    do you have any explanation of how anyone in primary could
    operate their duty and still maintain a 6-foot barrier between
    them and the individuals making contact?
        Ms. Duke. No. I believe most primary screening would be
    within 6 feet at a land port of entry.
        Mr. Bilbray. What is the Department doing today--and I
    apologize for being here late, but I had another hearing and
    have been bouncing back and forth. What have we done today to
    make it clear, or has the policy been changed to allow the men
    and women that are on the frontline to make this determination
    themselves? Or is it still a-supervisor-by-supervisor's call
    like it was in the last month?
        Ms. Duke. The current state of H1N1, even CDC has changed
    their guidance on May 8th, does not warrant the use of
    respirators, the N-95, even in the conditions that we are
    discussing here. So the medium risk, which is within the
    general public recurring for long periods of time, does not
    warrant the use of masks, according to CDC guidance.
        Mr. Bilbray. So today, if somebody in San Ysidro wanted to
    put on a mask in primary, they can't do it.
        Ms. Duke. The supervisor would assess the specifics of the
    situation. Some employees do wear masks and are permitted by
    the supervisor.
        Mr. Bilbray. You know, let me just be very frank about
    this. I have seen the public relations game played along the
    border for 30 years. This certainly looks to me more like a PR
    concern than a public health concern. And I operated a public
    health department for 3 million people for 10 years, and there
    is no way in the world I could have asked my county or city
    employees not to be given the ability to make that call. I
    mean, there is that issue of free choice when it comes to your
    health. This is one that I just think goes way over.
        And madam, I am sorry, I know you are having to carry quite
    a burden walking in this room. But, frankly, I think this is an
    indictment on the system that worries about perceptions more
    than allowing people to make that choice themselves to protect
    their health, and I just think that it is going to be one that
    is not going to be let up until it is corrected.
        Thank you very much, Mr. Chairman.
        Mr. Lynch. Thank you.
        And I am not going to beat this to death, but in the one
    breath, you say CDC says it is not warranted, that masks aren't
    warranted. But in the next breath, you've got all your Border
    Patrol agents all wearing them voluntarily. So you are not
    relying on CDC, because all those folks can wear the masks. But
    you have 50,000 others that can't wear the masks, and you have
    whatever medical evidence you have, but you have made two
    different decisions where there really isn't a distinction
    between the jobs being done by those officers.
        So you are not relying on CDC. I know you are trying to
    shift the responsibility to them, but you have already taken it
    upon yourselves to make a dual policy between border agents and
    TSOs and Customs folks and ICE, those employees as well, who
    are not being allowed to wear the masks. That is an internal
    inconsistency that you have within your own Department.
        So let me ask--I am going to have to break for votes here
    shortly. But, Dr. Weissman, while I recognize that NIOSH is not
    responsible for setting standards, I understand that NIOSH has
    taken a lead role in pandemic flu research and personal
    protective gear. Do you feel, and I am not sure if you can
    answer this, but do you feel that an airborne transmissible
    disease standard should be considered by OSHA? And is this one
    of those areas where NIOSH thinks it might be warranted?
        Dr. Weissman. I think that is a policy issue that,
    obviously, I wouldn't make on my own. But we have guidance and
    the question of whether it is done in a regulatory way or it is
    done in a nonregulatory way, as long as it happens, as long as
    people do the right thing. And in the case of flu, as long as
    people do not only respiratory protection but do the whole
    range of protections is what is really important.
        So let's not lose track of the fact that people need to do
    the range of other things that we have talked about. People
    have to wash their hands. People have to do the distancing and
    the etiquette and the contact and all those kinds of things,
    too. And whatever happens, whatever comes down the road, should
    take into account the full range of the hierarchy of controls.
        So I guess that would be my response, I wouldn't focus just
    on respiratory.
        Mr. Lynch. I understand that. I certainly value your
    opinion. On that point, though, in a lot of these cases, these
    transportation security officers were not allowed to wash their
    hands, not allowed to use sanitizer in the process of screening
    these passengers. Is there anything you can think of that would
    warrant refusing them permission to do that?
        Dr. Weissman. Well, you know, we didn't talk specifically
    with DHS about this. The one anecdote that I can give you where
    this issue did come up was with the Postal Service, where the
    Postal Service has a history since the anthrax attacks of 2001,
    of allowing its employees to use N-95 filtering face-piece
    respirators on a voluntary basis. And when the 2009-H1N1
    outbreak occurred, they contacted us with the question of,
    would it be all right if we allowed them voluntary use of N-95s
    or surgical face masks? And our response back to them was that
    it was really important, if that were done, to do it within the
    context of an educational program to make sure that just, if
    people used those devices, that they should also follow the
    other protections, you know, the other things that we have
    talked about, again, hand washing, distancing to the extent
    possible, you know, barriers, and also understanding the
    strengths and limitations of the devices. So that is the one
    anecdote I can give you of where that came up.
        Mr. Lynch. I am going to have to run over and vote, so I
    should be back in about 25 minutes. Thank you.
        [Recess.]
        Mr. Lynch. Because of the continuous voting schedule, this
    testimony and this hearing have been delayed to an unreasonable
    extent, I believe. So to try to accommodate all the witnesses,
    and I know some members on our first panel had other
    engagements that they let us know of in advance, we decided
    that we would continue any questions with that panel in writing
    and any responses would be returned in writing in order to
    expedite the hearing. And we may do that with the next two
    panels as well if there is additional questioning and responses
    warranted.
        But let me first, as is the custom here, we usually swear
    witnesses. So I ask all witnesses to rise and raise your right
    hands.
        [Witnesses sworn.]
        Mr. Lynch. Let the record reflect that both witnesses have
    answered in the affirmative. Before proceeding with testimony,
    I would like to offer a brief introduction of the witnesses on
    panel two.
        T.J. Bonner is the president of the National Border Patrol
    Council, a professional labor union representing more than
    17,000 Border Patrol agents, and whose parent organization is
    the American Federation of Government Employees. He has been a
    Border Patrol agent in the San Diego area since 1978, where he
    is a strong advocate for secure borders and fair treatment of
    the dedicated men and women who patrol them.
        Ms. Colleen Kelley is the national president of the
    National Treasury Employees Union [NTEU], which is the Nation's
    independent sector union, representing employees in 31 separate
    government agencies. A former IRS revenue agent, Ms. Kelley was
    first elected to the union's top post in August 1999 after a 4-
    year term as national executive vice president.
        Welcome to both of you. And I appreciate your forbearance
    and your patience.
        Mr. Bonner, you now have 5 minutes for an opening
    statement. Thank you.

     STATEMENTS OF T.J. BONNER, PRESIDENT, NATIONAL BORDER PATROL
    COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO;
       AND COLLEEN KELLEY, NATIONAL PRESIDENT, NATIONAL TREASURY
                            EMPLOYEES UNION

                        STATEMENT OF T.J. BONNER

        Mr. Bonner. Thank you, Chairman Lynch.
        Protecting our Federal work force is pretty much a no-
    brainer. It is in everyone's interest. Not just as a favor to
    the employees, but any sensible manager needs that work force
    there. Despite the advances we have made in automation, a few
    baby steps in telework, many of the tasks performed by Federal
    employees have to be done with face-to-face contact with the
    public.
        Law enforcement, first responders, health care, primarily,
    the American Federation of American Government Employees
    represents many of these employees in the Department of
    Homeland Security, Veterans Affairs, Social Security, Bureau of
    Prisons, and other Federal agencies that the American public
    relies upon, and it makes absolutely no sense to have those
    employees unnecessarily taken out of the equation by having
    their health jeopardized by predictable events.
        And let me be clear, we are not just talking about the
    recent swine flu outbreak. We had the SARS outbreak in April
    2003. And yet, here we are more than 6 years later, and it
    appears that the lessons have not been learned.
        Our agents at the border, be they Border Patrol agents, CBP
    officers, and the TSOs, come in contact with people from
    countries all over the world, some of whom, and I am not saying
    by any means the majority, but some of whom are carrying
    communicable diseases. These officers and agents should be
    allowed to take reasonable precautions in order to safeguard
    their health.
        While it was refreshing to hear the Undersecretary for
    Management for DHS be upfront about the Department's policies,
    those policies are, quite frankly, appalling. An admission that
    supervisors with no medical experience whatsoever are given
    full rein to decide whether employees can protect themselves?
        There are two things that our government should be doing
    for employees. It should be providing them with the protective
    equipment that they need and facilitating their use of that
    equipment.
        Border Patrol agents are provided with soft body armor to
    protect themselves against armed assailants. Listening to the
    Undersecretary for Management and the inane policy that she was
    articulating brought to mind a policy, what a policy would look
    like for Border Patrol agents if they were told you can don
    your body armor when the bullets start flying. When you are
    within range of someone and they sneeze on you, it is too late.
    At that point, you don't don the mask. You have already been
    infected. These employees should be allowed to wear the mask
    when they feel the need for that mask.
        I am, I suppose, equally mystified and appalled as you,
    sir, when I hear these alibis for why they are not doing the
    right thing for their employees. This is something that is a
    no-brainer. You can go to--and one of the excuses that I have
    heard is, well, our employees haven't been trained properly.
    They haven't filled out the medical questionnaire, and they
    haven't been fit-tested. You can go down to the corner hardware
    store and buy an N-95 respirator. Millions of Americans do it
    every year. They don't have to fill out a medical
    questionnaire. They don't get fit testing. It is kind of common
    sense.
        It reminds me very much of the little warnings that they
    put on firearms: Warning, this could be dangerous. Well, yeah.
    If you experience lightheadedness after you put this on even
    though you haven't been trained, then common sense tells you,
    maybe I should take this off.
        We give these folks at the border arrest authority. We give
    them guns to defend themselves and empower them to use deadly
    force if necessary. And yet, we can't trust them to make
    commonsense judgments about their own health?
        Before I close my statement, I would like to introduce into
    the record some of the examples at the airports with the TSOs
    of how different this policy has been administered. I would
    say----
        Mr. Lynch. We will accept that without objection. You can
    submit that for the record.
        [The information referred to follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Bonner. Thank you, sir.
        As a Border Patrol agent, I can happily report that, up
    until this point, they have not prohibited our agents from
    wearing respirators and other personal protective equipment,
    but I am very well aware of other instances within Customs and
    Border Protection officers who are part of the same bureau
    within the Department of Homeland Security, and yet, in those
    situations, where in fact they encounter more people than we do
    every day coming in from Mexico.
        And I would just say as an aside that when someone is
    transiting from Mexico where probably during the height of the
    outbreak, 25, 33 percent of the people were wearing some type
    of facial protection, they must have thought they hit the
    Twilight Zone when they hit the US-Mexico border and didn't see
    any of the people inspecting them wearing any type of
    equipment. This is unacceptable, and it needs to change. And I
    appreciate your hearing to make in-roads in that direction.
    Thank you very much.
        [The prepared statement of Mr. Bonner follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Lynch. Thank you, Mr. Bonner.
        President Kelley for 5 minutes.

                      STATEMENT OF COLLEEN KELLEY

        Ms. Kelley. Thank you very much, Chairman Lynch.
        Thank you for holding this hearing today and for inviting
    me to testify on behalf of the thousands of employees
    represented by NTEU who work every day to protect our country
    from threats and who have continued to do their critical work
    diligently during the current swine flu outbreak.
        The NTEU represented employees most affected by the current
    spread of the H1N1 influenza work for the Department of
    Homeland Security, as we have been discussing. Our Customs and
    Border Protection officers and agriculture specialists work at
    the land, at the sea, and at the air ports of entry across the
    country, and our transportation security officers work at
    airports.
        You have clearly articulated the work that they do and the
    number of travelers that they interact with every day doing
    their jobs, and why the 6-foot rule that we have heard about
    does not work.
        Many of these employees work on the U.S.-Mexico land
    border. Many also process international flights from Mexico.
    Once the origin and the breadth of the swine flu became clear,
    these employees in particular were concerned about protecting
    their health and that of their families. That is certainly
    reasonable.
        The U.S. Government had advised against unnecessary travel
    to Mexico, and all of the first cases of H1N1 flu in the United
    States involved people who had recently traveled from Mexico,
    and, unless they came into the United States illegally, they
    must have passed through a port of entry staffed by these
    employees.
        Those who work on the land borders saw their Mexican
    counterparts, often just steps away, wearing masks as they
    performed their duties. Some of these employees wanted the
    option of wearing a protective mask or respirator, but CBP and
    TSA have prohibited the wearing of masks unless an employee is
    in close contact with an ill traveler. Under that circumstance,
    a mask is required to be worn.
        Now, as soon as questions began coming in to NTEU from our
    members across the country as to whether or not they could wear
    respirators or masks, NTEU began trying to find out what the
    current policy was. We contacted CBP. We contacted TSA. And we
    contacted Homeland Security, and we got no answers.
        During this time, a DHS spokesperson was quoted in the
    press as saying, ``The Department of Homeland Security has not
    issued an order saying our employees cannot wear masks.'' And a
    CBP spokesperson was quoted saying, ``CBP officers and Border
    Patrol agents are provided personal protection gear which they
    may utilize at their discretion.'' But CBP and TSA were both
    clearly enforcing a prohibition, without exception, across the
    board. This was not on a manager-by-manager basis. This was
    clearly a directive from the head of CBP or the head of
    Homeland Security.
        Some statements from DHS that appeared in the press
    indicated that managers who were preventing the wearing of the
    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,
    as you already noted, attached to my written testimony are
    affidavits from some of them relating instances of supervisors
    demanding that they remove their masks. Some of them are
    disturbingly threatening, and some include comments indicating
    that the reason for the prohibition was fear of alarming the
    public.
        The affidavits also confirm that the policy has not been
    disseminated in writing, and that employees' requests for
    written guidance on the issue have been denied.
        I trust that this committee will ensure that the employees
    who provided these affidavits will be free from any negative
    impact within the Department or the Bureau and their jobs.
        After researching possible scientific or medical reasons
    for prohibiting the optional wear of masks at CBT and TSA, NTEU
    is convinced that the reasons are not based on science or
    medicine but on public relations. In our view, avoiding
    unnecessarily alarming the public is not 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.
        The first person to die in the United States from swine flu
    was a toddler; the second was a pregnant woman. Both had
    traveled from Mexico to the United States. Some of our members
    working on the Mexican border are parents of young children.
    Some may be pregnant or have a pregnant spouse. Some may live
    with family members who are particularly vulnerable. 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 they have
    worked diligently through this swine flu outbreak, even if they
    have requested and been denied the ability to wear protective
    masks for reasons of great concern to themselves and to their
    families. These employees 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
    their ability to protect their health than to the potential for
    public alarm.
        I thank you very much for holding this hearing and for your
    views on this issue which you have made very clear throughout
    the day. And I look forward to any questions that you might
    have for me.
        [The prepared statement of Ms. Kelley follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Lynch. Thank you.
        Thank you both.
        President Kelley, your testimony in one part I think
    offered a very telling visual. You were describing security,
    either TSA or Customs/Border Patrol folks on our side with no
    masks--they were refused the right to wear masks--looking
    across at their Mexican counterparts, the Mexican security
    officers on the Mexican side of the border doing the same job,
    and they all had masks on.
        And it sort of points out the absurdity, I think, of the
    Department of Homeland Security's position on this that--and I
    have heard and seen in the testimony and the affidavits that
    have been submitted, a lot of the employees repeating the
    statement by management, DHS in this case, that we don't want
    to alarm the public, so we can't wear the masks. And so, they
    are worried about the economic impact or the perception of our
    folks wearing masks.
        And all I can say is, I remember when I first started to
    travel internationally, the first time I saw security officers
    with heavy weaponry in--it might have been Ben Gurion Airport
    in Israel or Tel-Aviv or it might have been Charles DeGaulle
    Airport in Paris, I forget--but seeing them there with Uzis and
    heavy weaponry sort of got my attention because we hadn't had
    it here in the United States. And it was a little bit of a
    surprise, but now you see it everywhere, and it has become the
    norm. And I think that if you travel in Asia now, folks wearing
    these respirators is a very, very common sight.
        And so the balance of interests here, clearly, falls on the
    side of protecting our Federal employees than worrying about
    what a dust mask might do to someone's impression or
    willingness to travel. I just think that it is a misplaced
    priority and that we have to get serious about protecting the
    people who protect our borders and our airports.
        Mr. Bonner, you highlighted in your testimony as well the
    distinction that some of your border agents were given the
    right to voluntarily decide. They gave them their own
    discretion to wear masks, but other employees were not, that
    you work in conjunction with or in the same area with. Can you
    identify any reason that might be the case for any facts that
    might mitigate to that type of policy?
        Mr. Bonner. I think that President Kelley touched upon it
    when she said it was mainly for public perception reasons. The
    Border Patrol by and large operates in the shadows. The only
    time you encounter us along the immediate border is if you are
    trying to enter the country illegally. We do operate traffic
    checkpoints on certain highways, not a large number of agents
    engaged in that activity. But even in those areas, we have not
    heard reports of agents being prohibited from wearing it. But,
    obviously, it is a different universe of people that you are
    encountering.
        For example, if you are up in Oceanside, CA, most of the
    people that you encounter have not crossed the border. So it is
    a different threat level, so most agents don't feel the need to
    wear a mask in those situations. Now, if they were in an area
    right at the border, I am sure they would be viewing things a
    lot differently.
        Mr. Lynch. Ms. Kelley, and Mr. Bonner, I guess this is a
    fair question for each of you. What type of a response have you
    had from these different agencies. You are both representing
    significant numbers of employees that are involved in this
    activity. What has been your experience with the response of
    the agencies who are responsible for this policy or absence of
    a policy?
        Ms. Kelley. I have received no written response from the
    Department of Homeland Security. I have received no written
    response from the Administrator of TSA. And I received a
    written response last night from the acting commissioner of CBP
    which, in my view, was a nonresponse. But, I actually have a
    letter that I guess intends to respond to my inquiry and my
    request that they make clear whether there is or is not a
    prohibition. I asked them to put that in writing, and they to
    date have not done that.
        Mr. Lynch. Mr. Bonner.
        Mr. Bonner. Similarly, AFGE wrote to TSA and Homeland
    Security and has yet to receive a response.
        Mr. Lynch. OK. The committee is actively considering
    legislation. You know, it is not my first choice. I would
    rather have this done in a regulatory fashion by the folks that
    are on the ground. You know, I don't prefer legislation. It is
    cumbersome, takes a lot of energy, a lot of time. But I see no
    signals coming from these agencies that there is going to be
    any type of change soon.
        So I discussed it with the Members who are here today. They
    think we need to proceed, and so do I.
        What are your own thoughts on undertaking these changes
    legislatively instead of--I know you are a collective
    bargaining agent for a lot of these employees, each of you.
    Talk to me about the two processes, and do you think that we
    are at that point? With the lack of response and the lack of
    accountability, do we have to go this route?
        Ms. Kelley. If it has to come to that, obviously NTEU would
    be glad to work with the committee on whatever that it would
    require.
        I do have to say I think it's very disappointing if it has
    to come to that. The first day that I became aware of this as
    an issue, I really believed it was just a misunderstanding or a
    miscommunication and that if I made a call, that of course they
    would make it clear that the employees could wear the mask at
    their discretion.
        Mr. Lynch. You would think.
        Mr. Kelley. That is what I thought. I thought this was
    going to be an easy one. That was on day one.
        And then I started getting the finger-pointing, well we're
    waiting for this one to do this and that, and can you give us a
    little time?
        And by the 4th day, I was getting a little impatient. And
    then I started talking to everybody that everybody was pointing
    the fingers at in the hopes that someone would step up and do
    the right thing.
        And here we are, I guess about 18 days later, and no one
    has stepped up yet to do the right thing. And no one has even
    been willing to be upfront about why--you know, they say, on
    the one hand, even when I listened to the testimony of the
    earlier panel, Ms. Duke said--and I wrote this down.
        First she said, and I believe I heard this right, the
    voluntary wearing of masks was not warranted, and that was
    Secretary Napolitano's decision.
        Then later she said there was no Department-level
    prohibition against wearing the masks. Well, that is a little
    bit different.
        And then the third one I heard was individual supervisors
    were allowed to make the decisions, which is--I wrote some
    notes here that I won't repeat to you about my thoughts about
    that, but I know that is absolutely false because I have talked
    to our members at airports across the country and TSA and at
    ports of entry across the country, including the southwest
    border and anywhere that a Mexico flight comes in, and there
    was one very clear oral directive given and that was ``no masks
    are to be worn.'' They were toward that in musters. No one
    would put it in writing, and no one would take responsibility
    for it.
        So I think it would be a shame if it has to be legislated,
    that someone would not just not step up and do the right thing.
    But if that is what it takes, NTEU will be glad to work with
    you to help make that happen and avoid this in the future.
        I cannot believe that employees would ever be put in this
    position again. And from what everyone says, this will happen
    again, whether it's in the fall or in 2 years or 5 years, and
    we should not ever have to have this conversation again.
        Mr. Lynch. Mr. Bonner.
        Mr. Bonner. I think we may be at that point.
        After the SARS epidemic 6 years ago, the agencies were
    directed to come out with assessments, guidance. CDP came out
    with an assessment estimating that 40-50 percent of its work
    force would be taken out of service due to a pandemic with the
    proper medical response.
        I would say that nearly all of the work force would be
    taken out of the equation with nonsensical procedures in place,
    waiting until it's too late.
        And one of the disturbing parts of that guidance, that
    draft guidance, was a call for greater flexibility to
    discipline people for taking sick leave when they were affected
    by that. It was just mind numbing to see their take on how to
    deal with this, rather than protecting the employees and
    ensuring that they did not get sick, that when they were sick--
    I mean, one of the worst things that you can do is show up
    sick, because then you're going to infect your coworkers and
    almost guarantee that they will become ill.
        Mr. Lynch. One of the, the following panel, I'm going to
    ask them to address some of the medical aspects of this. But I
    would like you to work with us.
        You've already raised a number of points, the sick leave. I
    understand from the testimony that I received directly to the
    committee, there were some workers' compensation issues where
    employees who came down sick with the flu, their illnesses were
    contested because they said they could have gotten them at home
    instead of inspecting 3,000 workers at the border coming in
    from Mexico. So, you've got these absurd cases, not to mention
    what it does to morale.
        Mr. Bonner. And we would be, AFGE along with NTEU, would be
    more than happy to work with the subcommittee in drafting such
    legislation and moving it along.
        Mr. Lynch. I appreciate all of the work you've done, both
    of you, in representing your employees and the people that are
    on the ground doing this. I got a lot of evidence in from your
    folks and from you as well, and I think you've got a good
    perspective of things on the ground.
        So we would welcome your involvement in drafting the
    legislation going forward, because the silver lining on this is
    we may have dodged a bullet here with this experience. It was
    not lethal. But that doesn't mean, and the following panel I
    think will elucidate on this, the following strain won't be
    lethal. And what would happen then if we had this same
    nonsensical policy in place and folks started dropping out of
    their positions on the border, started infecting their own
    families and those communities? You could see this whole thing
    snowballing.
        And, my family is very much involved in the Post Office.
    And I remember when they had the anthrax attacks on the Post
    Office, and my sisters, who both had young children at the
    time, were worried about, should I go into work, because if I
    get some of this stuff on my clothes, I will come back and
    infect the kids?
        It's the same dynamic here. It takes a certain amount of
    courage under the situation, and especially, imagine if the
    rate of fatalities were elevated here. Now you've got folks who
    are Custom and Border Patrol and TSOs and ICE employees
    responsible for working on the border. They know there's a
    threat there. They know there's a likelihood that they'll be
    exposed and bringing that back to their families. It's tough
    enough to just to go and do your job, never mind trying to do
    it without adequate protection and without the support of your
    employer.
        It's just disheartening given the service that these folks
    are rendering to their country.
        And I would ask you to work with our committee, help us
    draft something that is tight enough to address the actual
    situation on the ground for especially those frontline
    employees. And we welcome your participation on that.
        There may be some followup questions in writing from some
    of my colleagues who are not here. If you would, we would
    welcome your responses in writing as well. I want to give each
    of you an opportunity, if there have been aspects of this that
    we haven't covered during the hearing that you want to
    illuminate a little bit, Mr. Bonner, please feel free.
        And Ms. Kelley, if you have anything.
        Mr. Kelley. I would just add that these frontline employees
    who we have been talking about, because of their work, really
    just deal with thousands of employees or thousands of travelers
    every day; these are professional employees who exercise
    judgment every minute that they are on the job. So why not
    respect their judgment and let them make the judgment as to
    whether or not they think that they should wear a mask? We have
    no idea how many employees would want to do that. It might not
    even be the majority. But if someone wants to exercise that
    right, why deny them?
        And I do have to say, I hesitated from putting in my
    original testimony to not digress from the subject, which is
    employees' rights to wear the masks at their discretion.
        But this issue of morale that you raised, Chairman Lynch,
    is a very, very real one for every employee, for every job, and
    every agency. But in the Department of Homeland Security
    employees have rated them 29th out of 30 agencies from a morale
    perspective every year that the survey has been given. And this
    is the kind of thing that the employees remember. This is the
    kind of thing that they point to and say, what kind of an
    employer is this that I work for who doesn't care? They can put
    out all of the statements they want about caring about
    employees, but actions really speak louder than words,
    especially on issues like this.
        Mr. Lynch. Absolutely, I mean this is a perfect
    illustration I think in terms of whether you respect the
    service that the workers render and whether we're giving them
    the protection that they deserve. So I agree with you heartily.
        Mr. Bonner, anything in conclusion?
        Mr. Bonner. I think that we've pretty much covered the
    waterfront on what the problem is and also, unfortunately, what
    needs to be done. Since there appears to be a real shortage of
    common sense within this bureaucracy, it appears that the
    legislature is going to have to step in and force that. And I
    know that the conventional wisdom is you cannot legislate
    common sense, but at least we can put procedures in place to
    force these bureaucracies to do the right thing, not just for
    their employees but for the greater public good.
        The greater public good is not well served if the employees
    who are responsible for protecting us become transmission
    agents for deadly diseases, spreading it not to just their own
    families but well beyond their own communities and facilitating
    a pandemic event.
        So thank you very much, once again, for convening this
    hearing.
        Mr. Lynch. Thank you we will continue to work together. We
    appreciate your input, and Jill here will be the point person
    for the committee in drafting this legislation so you can work
    with her.
        Thank you very much for your willingness to testify. Sorry
    about the long wait. But we really do appreciate your
    testimony. Thank you.
        If we could possibly have the third panel, final panel.
        Welcome. It is the custom of the committee to swear in all
    witnesses who are to submit testimony. Could you please raise
    your right hands and repeat after me?
        [Witnesses sworn.]
        Mr. Lynch. Let the record show that both of the witnesses
    have answered in the affirmative.
        I will offer a brief introduction of our witnesses, and
    then each will be allowed to present an opening statement of
    about 5 minutes in length.
        Dr. Thomas F. O'Brien has been a consultant in infectious
    diseases for over 20 years and the medical director of the
    Microbiology Laboratory at Brigham and Women's Hospital. He
    also serves as an associate professor of medicine at the
    Harvard Medical School; codirector of the World Health
    Organization Collaborating Center for the Surveillance of
    Antimicrobial Resistance and vice president of the Alliance for
    the Prudent Use of Antibiotics [APUA].
        Dr. Jeffrey Levi is the executive director of Trust for
    America's Health, where he leads the organization's advocacy
    efforts on behalf of a modernized public health system. Dr.
    Levi is also an associate professor at the George Washington
    University Department of Health Policy where his research has
    focused on HIV/AIDS, Medicaid, and integrating public health
    with the health care delivery system.
        Welcome, gentleman.
        Dr. O'Brien, I would like to give you an opportunity to
    offer an opening statement for 5 minutes.

      STATEMENTS OF THOMAS F. O'BRIEN, MD, VICE PRESIDENT, GLOBAL
       ALLIANCE FOR THE PRUDENT USE OF ANTIBIOTICS, AND DIRECTOR
    MICROBIOLOGY LABORATORY, BRIGHAM AND WOMEN'S HOSPITAL, BOSTON,
     AND ASSOCIATE PROFESSOR OF MEDICINE, HARVARD MEDICAL SCHOOL;
        AND JEFFREY LEVI, PH.D., EXECUTIVE DIRECTOR, TRUST FOR
    AMERICA'S HEALTH, AND ASSOCIATE PROFESSOR, DEPARTMENT OF HEALTH
                  POLICY, GEORGE WASHINGTON UNIVERSITY

                   STATEMENT OF THOMAS F. O'BRIEN, MD

        Dr. O'Brien. Thank you very much, Chairman Lynch and
    subcommittee members, for the opportunity to testify on behalf
    of the Alliance for the Prudent Use of Antibiotics concerning
    how best to protect frontline workers and the public during a
    crisis such as the current influenza epidemic--pandemic.
        I will just say briefly, the Alliance for the Prudent Use
    of Antibiotics was established in 1981 as an independent public
    health organization with a mission of strengthening society's
    defenses against infectious diseases by promoting appropriate
    use of antibiotics and by controlling antimicrobial resistance.
        And I think use of antibiotics--I was pleased to hear that,
    in the discussion of this, Mr. Connolly brought up the issue of
    agricultural use of antibiotics, which is one of the things
    we've tried to restrain as part of the general effort to keep
    strains of bacteria viruses from becoming resistant.
        Based in Boston, the APUA has affiliated chapters in over
    60 countries, and it is the world's largest network that is
    totally dedicated to education and research concerning
    antibiotic resistance with a goal of preserving these
    lifesaving drugs.
        That particular interest plays into an influenza outbreak
    in two ways. One is that there is concern about resistance in
    Tamiflu, or potential for resistance in Tamiflu, or the
    antiviral drugs themselves, which is a concern moving forward.
    But another one that has to be kept in mind is that, should
    there be a very severe influenza outbreak with cases of viral,
    a lot of cases of viral pneumonia, in the past, there is
    evidence that the mortality of these illnesses has been greatly
    magnified by superimposed bacterial infections and, in
    particular, staphylococcal bacterial infections.
        And the fact that we now have staphylococcal--multi-
    resistant staphylococci circulating, not just in hospitals but
    now, in recent years, in the community as well, would mean that
    the resources, the drugs available to treat such pneumonias
    would be diminished if antibiotic resistance increases to the
    point where, as in some past years with staphylococci, there
    have been virtually no drugs left for that treatment. So this
    is a particular concern of ours that relates not--hopefully not
    to the influenza we have had or even to the coming influenza,
    but is a potential threat, added threat, to a severe influenza
    outbreak.
        And I might say that one of the problems about viral
    influenza, just thinking about the discussion we've been
    hearing, and I think it plays into some of these questions of
    how we respond, one of the problems is that, of all of the
    contagious illnesses, there's none that is as wildcard or as
    unpredictable as viral influenza. Most other things, most of
    the other major infections, there is a way to project forward
    what will happen. With the influenza virus, that is, as I think
    has been demonstrated over and over again, is very hard to do.
    So that creates a level of uncertainty that we don't encounter
    with the other diseases.
        I would say that we've been impressed by the good work that
    has been done by our public health agencies, both National and
    State public health agencies, in recent years in building up
    infrastructure to deal with these problems and to deal with the
    lack of predictability. And I think, again, in their response
    has become much more sophisticated, and I think the
    congressional support they have had in getting better funding
    for their programs has helped enormously in putting us way
    ahead.
        It's helped, also--or will help, I think--the general
    support for biomedical education that the Congress has been
    very good at in recent years, will help in the broader
    understanding, given the capabilities, biomedical capabilities,
    now of nucleotide sequencing, molecular modelling and the new
    disciplines that are coming in, I would be willing to predict
    that going forward in another 10 years, that viral influenza,
    which will still be with us with the new threats, will be much
    more predictable. We will be able to pick up earlier new
    strains. We will be able to get a sense which way they are
    going. I think, by this broad biomedical research, we will
    enhance our ability to get out ahead of them sooner and to have
    a proper response or make vaccines faster and perhaps make
    better drugs and deploy them faster.
        So I think a lot, with all of this, we don't want--I would
    like to point out how much infrastructure has been built, both
    in public health and basic bioresearch, to give us a better
    control of all of these issues going forward. And as you can
    imagine, even in the issues that have been discussed here,
    better predictability would help a lot.
        Just on the subject, it just occurred to me on the subjects
    that have been discussed here about the workers protection and
    the voluntary masks and so on--it's not my field--but just one
    thing that occurred to me that might be worth mentioning is
    that it may be that some of Undersecretary Duke's advisors,
    public health epidemiologists, have a principle in mind that,
    in an impending epidemic, it's important to put some restraint
    on panic, not to allow people to be overly panicked because
    that diffuses resources and complicates everything.
        And that may have been an element, as I say, an element and
    somehow it got into the area of mask wearing. And it just
    occurs to me that there might be a way to deal with that in the
    sense that it is a public relations issue, as you point out; it
    is a cultural issue, the understanding of what a mask-wearing
    is. And it could be destigmatized by careful public health--
    with the media, it would be fairly easy to get the word out
    that masks are precautionary, are conditional, provisional, and
    that people encountering mask-wearing people doesn't mean that
    something terrible is about to happen. It's just a cultural
    response to a problem that people can adjust to.
        And as you pointed out, we've adjusted culturally to seeing
    armed guards in airport security, and I think in other
    cultures, Asia, as the ranking member pointed out, in Asia,
    mask-wearing does not trigger--would not be seen as a trigger
    of public concern because it's kind of random and haphazard,
    and people do it anyway.
        It just occurred to me that maybe that is a small element
    that could be introduced to this that might--and if it were
    true that some of the public health concerns were that, that
    might be minimized by--of paying attention a little to better
    cultural adaptations to mask-wearing.
        [The prepared statement of Dr. O'Brien follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Lynch. Thank you.
        Mr. Levi.

                    STATEMENT OF JEFFREY LEVI, PH.D.

        Mr. Levi. Thank you, Mr. Chairman, and thank you for
    holding this hearing.
        I want to depart a little bit from my prepared remarks just
    to address some of the specific questions around public health
    guidance around mask wearing.
        I think it's really important in the context of a public
    health emergency for all agencies of the Federal Government,
    including the Department of Homeland Security, to consistently
    and clearly follow CDC and OSHA guidelines for their employees,
    both because it's the right thing to do and because it's a
    model for other employers.
        It's unfortunate that, because of all of the voting, that
    there wasn't an opportunity for the CDC, I think, to explain in
    more detail the rationale and the science behind their
    guidelines, which, as I understand it, do not currently call
    for the routine use of N-95 respirators. And so it's not clear
    that the Department of Homeland Security was violating what is
    current public health guidance.
        And I think there are opportunities in this situation to
    pass legislation that could better protect Federal workers, and
    actually, all workers. But I think we need to take care in
    drafting such legislation so that the policy that is legislated
    is both based on the science and flexible enough that we don't
    box ourselves in as the science evolves.
        Our understanding, for example, of what are appropriate
    precautions in the context of an influenza epidemic has been
    changing over time in part because of the investment in
    research that has been occurring over the last several years.
        It would be unfortunate if we mandated certain types of
    approaches to disease control in legislation that may be
    outstripped by improvements in our understanding in the
    science.
        So I hope that we can find a balance here between making
    sure we're doing everything we can to protect workers without
    substituting, I think, for--or restricting ourselves to current
    understanding of the science as science may be evolving.
        And I think that, to me, brings me to a series of questions
    that we posed in our testimony today that addresses broader
    questions, including but beyond the use of N-95 masks, and I
    would like to very briefly put some of those questions on the
    table.
        The first and probably most basic is, have the Federal
    agencies updated and reviewed their strategic plan, their
    implementation strategies associated with the National
    Strategic Plan? The current Office of Personnel Management
    guidelines, which covers the entire Federal Government,
    including DHS, has not been updated since 2006. And a lot has
    happened since 2006 in terms of the guidance that CDC has put
    out, that OSHA has put out, and those should be incorporated
    into the OPM policies.
        And in fact, you know, it's not just the DHS workers that
    we need to be concerned about. There is a wide range of Federal
    employees who are consistently at risk, including those who are
    working in health care facilities, who are at the greatest
    risk, whom we need to make sure are being protected.
        For critical employees, I think that we clearly need to
    know, in addition to the issue of N-95 masks, what other
    workplace changes can be made to promote social distancing. But
    also we need to think about the CDC recommendations around
    stockpiling of antivirals. CDC recommends not just that
    agencies, that employers, stockpile antivirals for treatment
    but also for prophylaxis, so employees who are going to be
    routinely exposed to the virus, which could include some of the
    agency employees but certainly health care workers, that the
    employers stockpile sufficient drugs for prophylaxis.
        To the best of my knowledge, we do not have--the individual
    agencies have not done that yet, except in some rare occasions.
    And the Strategic National Stockpile has no courses in its
    supply for that kind of prophylaxis. So that would be an
    opportunity to address legislatively or through the
    appropriation's process.
        Similarly, if we move toward broader use of masks, whether
    it's N-95 or a face masks, again have agencies stockpile that?
    There is a tremendous production capacity problem, and if we
    are going to move toward use of these, and there may be a point
    in the context of a pandemic where we would want workers to
    routinely wear N-95 masks or surgical masks, we don't have
    enough in the stockpile to make that happen. So the guidelines
    will be meaningless if the Federal Government hasn't taken
    steps to make sure we have those things available.
        I think the last point that I would want to make is broadly
    speaking around sick leave. For health care workers--and I
    would say health care workers means people who are working in
    VA and DOD hospitals, in prison hospitals, or investigators
    working for CDC, but also those people that we ask to volunteer
    in the context of the pandemic and the various medical and
    volunteer corps who come forward, we need to make sure that we
    are providing them with adequate protection and that when
    people do become sick in the context of their work, because
    they have placed themselves at risk, that they are not using up
    their sick leave but that the Federal Government is making sure
    that they are continued to be paid, and in fact, the copayments
    associated with their care or through their Federal insurance
    will also be covered.
        That is a broader issue around sick leave, in terms of even
    following CDC guidelines to stay home if someone in your
    household is sick. We need a lot of flexibility from OPM. We
    need it broadly from other Federal employers, employees--from
    other employees in the private sector as well.
        Those are areas that I think could together become a
    comprehensive package that would make, I think, very useful
    legislation in assuring, in a broad sense, we're protecting
    Federal workers in the context of a pandemic or some other kind
    of public health emergency.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Levi follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Lynch. No, Thank you.
        Thank you both.
        I would want to note that I agree, the CDC analysis would
    be helpful. We've received some of that in testimony, quite a
    bit, in fact. But it seems, despite their analysis, there was a
    decision by Department of Homeland Security to allow some
    employees in the face of that analysis to wear the masks and
    deny 50,000 other employees the right to use the same masks. So
    they interpreted it, and then they took two different
    responses, which was very difficult to explain.
        Mr. Levi. From a public health standpoint, the most
    important thing to do in a crisis like this is to be
    consistent. So either be very consistent in adhering to the CDC
    guidelines, or if you're changing it, then change it
    consistently across the Departments.
        Mr. Lynch. Right.
        One of the other questions I had was there seems to be a
    policy on the part of DHS and Customs and Border Patrol as well
    as the Transportation Security Agency to have employees act as
    sort of an inactive surveillance. They are not being given
    gloves. They are not being given sanitizer. They are not being
    given masks, either N-95 or dust masks. And yet they are being
    asked to conduct passive surveillance of passengers and people
    crossing the border.
        From your standpoint, is there wisdom in that? I know they
    have this 6-foot rule here somewhat. Is that a real
    distinction? I'm not sure if it's----
        Mr. Levi. It is not clear to me--Dr. O'Brien may be better
    able to answer--whether in the context of passive surveillance,
    what level of risk there is of whether you actually need to
    wear gloves at a time like that. I think, clearly, for lots of
    reasons that have nothing to do with flu, if workers want to
    wear gloves or certainly having hand sanitizer available is
    something that is very prudent under any circumstances.
        Mr. Lynch. These folks are also being asked to wand these
    people, check these people--they are in close physical contact
    with these people as well, but they are also being asked to do
    this sort of analysis.
        Dr. O'Brien. I'm not quite sure that I understand what the
    passive surveillance is. They are not being asked to test the
    level of infectivity by getting it themselves, I hope. But I
    don't think that is the issue.
        I think, just backing up a little bit, that the problem
    again is--or a huge element is the unpredictability. If it's a
    mild disease and very low level, it's sort of always present.
    Or it comes every year, and there are a lot of fatalities every
    year from viral influenza, and it happens over various period
    of time. There is almost no uniform level of protection for
    that. It's too random.
        On the other hand, in a very serious, focused, short-term,
    highly lethal type of influenza, you'd want to use everything
    possibly that you could. As, for example, was done with SARS
    and was effective in SARS. And SARS, it was contained at a time
    when really I think the expectation was that it could not be
    contained.
        So there is a range of appropriate responses that CDC and
    guidelines are trying to adjust to. And one of the problems is
    the nimbleness with which you can adjust. And I'm thinking that
    maybe the technology is at hand to adjust these more quickly as
    circumstances change. And I can't translate that into what it
    means day to day for who uses what, but I think that kind of
    the general problem that is being dealt with here is trying to
    get the right degree of alertness for this week's risk.
        Mr. Levi. And I think to take it totally out of this
    context, we saw in the CDC's evolving guidance surrounding
    school closures, that at the beginning of the outbreak, there
    was very serious concern because we didn't know how lethal this
    was going to be. And as we learned more and had more experience
    and recognized that kind of approach was probably not going to
    be effective in containing the spread, and combined with the
    fact that the virus turned out in this stage not to be as
    lethal, that CDC backed off from that recommendation, and
    schools are remaining open.
        And I think that is part of the flexibility that we need to
    be able to build into whatever policy approach is ultimately
    made. We need to be consistent across Federal Government at
    each stage, but the answer or the approach that you take at the
    beginning of the outbreak may not be the one that you would
    want to consistently maintain throughout the outbreak.
        Mr. Lynch. Let me ask you, Dr. O'Brien, in your testimony,
    you state that, ``it's necessary to link the U.S. domestic and
    the international public surveillance efforts.'' What does it
    say or what type of assessment would you give this recent
    experience? It seemed that it took maybe a month between the
    time at which the H1N1 epidemic was identified in Mexico,
    Mexico City, and the time at which we, as a government, asked
    our public health agencies to get involved, to engage. There
    was, I would say, about a month's passage of time there.
        You talked about the need for coordination here because
    this is obviously global. How would you grade our response, at
    least in this most recent iteration of flu?
        Dr. O'Brien. I have to say, first of all, that I wasn't
    really focused on the time line as very carefully. That wasn't
    my major concern. But I had the impression that the response
    was really quite good and quite prompt; that from the time it
    could first be identified that this was a new virus, which is
    critical thing, and second, it was one to which we don't have
    immunity. It's enough different from the previous influenza
    viruses so we don't immunity, and that there were multiple
    cases turning up. And the early testimony--the early evidence
    from Mexico actually overestimated the virulence of this--that
    by the time that came in over a week or two, it struck me that
    CDC was very alert, and Richard Besser, as pointed out, I think
    maybe being concerned that they had overreacted, had said you
    have to do this, you have to move very quickly. You only have
    one chance to get ahead of these things. You have to overreact.
        And I think WHO, again, sensitized--I mean, they have had
    some training in recent years. The general director of WHO was
    in China when SARS broke out, and the Chinese response to that
    was really very good, and also I think was responsible--was in
    Hong Kong and was the responsible officer for the original,
    dealing with the flocks of chickens with the avian influenza.
    They went to top level alert, as I recall, almost as soon as
    they could.
        So I think, whether it's ideal or not, national and global
    response, was better than it has been previously; Was quicker
    and more alert than it has been previously.
        Mr. Lynch. Let me ask you on this point, each of you.
        On the one hand, you had CDC and DHS saying it was not
    medically necessary to use masks. On the other hand, you had
    the World Health Organization going to level 5, one level short
    of pandemic. It seems to me there is some inconsistency there.
    Is that because I'm naive and not understanding that?
        Mr. Levi. That is a really good point and one of the two
    lessons from this experience in terms of pandemic levels. One
    is the U.S.'s plan tracks WHO levels but actually doesn't start
    gearing up on its plan until we reach WHO level 6, which is not
    to say that lots of stuff wasn't put in place. I would agree
    with Dr. O'Brien that the public health response was phenomenal
    in the situation, because the U.S. plan assumes that the
    initial outbreak will be somewhere far away from the United
    States, and that didn't turn out to be the case. So lots of
    triggers would not have been pulled if people had followed the
    U.S. plan originally.
        The problem with the WHO stages is it does not make a
    distinction whether something is virulent or not virulent. So
    something can be pandemic, meaning it's a novel virus and it's
    worldwide, and not be terribly lethal and not be any worse than
    a seasonal flu, which may, at least so far is not the case; it
    may change but is certainly not the case now.
        We need in those stages to be able to distinguish, which is
    not to say that you don't want to raise your awareness, it
    doesn't mean you don't want to raise your response, but I think
    there's a communications problem there that when you reach
    level 5, we're one step away from a full-blown pandemic, that
    we need to be able to distinguish when it is virulent or not
    virulent because I think that creates a very different kind of
    public response and a different kind of policy response.
        Mr. Lynch. Dr. O'Brien.
        Dr. O'Brien. I was going to say that Chairman Lynch made a
    very good point that has other implications about the mismatch
    between the high level response and low level. Because the high
    level response, the CDC, the World Health--the highest levels
    of response were so quick this time, it may have made it
    clearer and this, what we've heard about today, may have made
    it clearer, that once you have that understanding, that
    alertness triggered, the cascade of ramifications at all levels
    of society is enormously complex in terms of what are you going
    to do about school closures and what does that mean about the
    school budget and today's subject is a perfectly good example
    of that. As you've pointed out, there has never been an
    influenza pandemic for almost a century now. There's never been
    one that has started close to the United States before.
        So that is new. So the need for this country to be involved
    instantly almost in all of these levels points out that people
    have to start thinking about a master plan, about all of the
    details. I mean, this isn't my field, and I am really not an
    authority on what has been done on this.
        But just from what I've heard, it sounds as though there
    needs to be attention to, as you draw out a chart of all of
    this, what happens at what level and how quickly and who
    decides what are all of the options. It strikes me there may be
    room there for more systemization.
        Mr. Lynch. I agree.
        On behalf of Mr. Connolly and also the ranking member, they
    indicated that they may want to submit questions to you in
    writing. And then, obviously, you would be given a reasonable
    period within which to respond in writing as well. But in their
    absence, I just want to thank you for your willingness to come
    before the committee, offer very thoughtful testimony.
        We appreciate your patience while we have had all of these
    votes across the way. But thank you very, very much for your
    willingness to testify, and we really appreciate the work that
    you've done on this.
        Thank you.
        [Whereupon, at 5:26 p.m., the subcommittee was adjourned.]