[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
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
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.]