Hearing of the Federal Workforce, Postal Service, and the District of Columbia Subcommittee of the House Oversight and Government Reform Committee - Protecting the Protectors: an Assessment of Front-Line Federal Workers in Response to the H1N1 Flu

Statement

Hearing of the Federal Workforce, Postal Service, and the District of Columbia Subcommittee of the House Oversight and Government Reform Committee - Protecting the Protectors: an Assessment of Front-Line Federal Workers in Resonse [sic] to the H1N1 Flu

Chaired by: Rep. Stephen F. Lynch

Witnesses Panel I: 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 Administration; Nancy Kichak, Associate Director, Strategic Human Resources Policy Divison[sic], U.S. Office of Personnel Management; Elaine Duke, Under Secretary For Management, Department of Homeland Security; Panel II: John Gage, National President, American Federation of Government Employees; Colleen Kelley, National President, National Treasury Employees Union; Panel III: Dr. Thomas O'Brien, Vice President, Global Alliance for the Prudent Use of Antibiotics, Director Microbiology Laboratory, Brigham and Women's Hospital, Boston, Associate Professor, Harvard Medical School; Jeffrey Levi, Ph.D., Executive Director, Trust for America's Health

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REP. LYNCH, (D-MA): Good afternoon. The subcommittee on the federal workforce, postal service and the District of Columbia hearing will now come to order. And 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 five minutes to make opening statements and all members will have three days within which to submit statements for the record. At this time I would like to ask unanimous consent for the testimony of our chairman, Benny Thompson of the Homeland Security Committee, to be entered into the record. Hearing no objections, it is so ordered.

I'll 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's the wake—this afternoon's hearing has been convened to examine and discuss our 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 front-line federal workers who are tasked with the awesome job of keeping the American public safe and healthy.

While we've all seen the headlines and 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 Protectors: An Assessment of Front-line 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.

Today's hearing also affords us the chance to enter into a dialogue about the implementation of future policies that would govern and lay out the rights of front-line 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 man-made 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 front-line 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. Front-line 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'd 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 front-line federal workers safe. This concludes my opening statement and I now yield to our ranking member, Mr. Chaffetz.

REP. JASON CHAFFETZ (R-UT): I thank you, Chairman Lynch, for holding this important hearing on Protecting the Protectors, An Assessment of Front-line 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 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 workforce. 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 1st, 2005. The strategy guides the nation's readiness and response to flu pandemics and it's given direction to the federal, state and local governments on how to respond in the wake of the current H1N1 flu outbreak. The key part of the strategy, quote "is to sustain infrastructure in mitigating impact to the economy and the functioning of society" end quote. That's exactly what we're here to talk about today.

Although a pandemic cannot damage physical infrastructure such as roads and power lines 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 function. 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 a pandemic flu can have on our nation's economy.

Personnel policies must reflect the two-fold 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 the written guidance to protect its employees is not, in fact, executing the guidelines on the front line. 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 healthcare 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 that unanimous consent to submit the letter is sent to President Obama and Secretary Napolitano into the record.

REP. LYNCH: Without objection, so ordered.

REP. CHAFFETZ: Thank you. It is a delicate balance that we must strike between protecting our front-line 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 in our federal workforce. Again, I thank you for your participation and look forward to hearing from you. Thank you, Mr. Chairman.

REP. LYNCH: Thank you. The chair now recognizes the gentleman from Virginia, Mr. Connolly, for five minutes.

REP. GERRY CONNOLLY (D-VA): 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 and 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 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 are 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 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'm 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 on 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 in the Medical Treatment Act introduced by our colleague Representative Starr 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's unconscionable that TSA, our border patrol, our 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 this timely hearing.

REP. LYNCH: Thank you. It is the custom of this committee to swear witnesses for testimony. Would you please rise and raise your right hand? Would you respond to this: Do you solemnly swear that the testimony you will give before this subcommittee is the truth, the whole truth and nothing but the truth? Let the record show that each of the witnesses answered in the affirmative.

Before I ask for testimony, we'll do a brief introduction of the witnesses. Panel I: Mr. Thomas Galassi is Director of Technical Support & Emergency Management, Occupational Safety and Health Administration. Mr. Galassi is the Director of OSHA and the Director of the Technical Support in 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 of Enforcement Programs, where he had oversight of federal agencies, safety and health from 1999 to 2008.

Dr. David Weissman is the 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 Undersecretary for Management on June 27, 2008. Ms. Duke is responsible for the management and administration of the departments which includes Director of Human Capitol Resource 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 five minutes. Just as a general guideline, that box in front of you will keep track of your time. You have five 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. Okay, Mr. Galassi, welcome.

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 would like 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 and services 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 workforce. Preparation is critical. OSHA has been engaged in efforts associated with a national strategy for pandemic influenza which directs all federal departments and agencies to 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 the employees appropriate administrative work practice, including controls and personal protective equipment based on exposure risk associated with specific tasks.

OSHA's current outreach efforts are in 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 healthcare workers and first responders. OSHA recognizes the importance of protecting healthcare workers like those working at the Veterans Affairs on whom this country rely to identify, treat and care for individuals who have the flu. OSHA has issued pandemic influenza preparedness and response guidance for healthcare workers and employers which provides valuable information and tools about healthcare 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, quick cards written in English and in Spanish. The agency's Website, www.OSHA.gov contains comprehensive information dealing with the pandemic as well as a link to the federal Website 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 and 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, 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 non-compliance. As part of the 2009 H1N1 outbreak, OSHA has been fully engaged in federal coordination and 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 staff.

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 combating this threat to the workplace. Mr. Chairman, I would characterize this situation for the federal workforce 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 workforce. 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. Thank you.

REP. LYNCH: Thank you. Dr. Weissman. You have five minutes. Thank you.

MR. WEISSMAN: Good afternoon, Chairman Lynch and Ranking Member Chaffetz and other distinguished members of this 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's 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 and get a better understanding of the magnitude of this outbreak, and we're actively tracking the progression of this virus globally. It's important that we continue to be vigilant. We need to be prepared for a possible return of this virus to the U.S. 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 hand washing 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're 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 healthcare 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 at CDC team effort to minimize the effects of the outbreak on workers at 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 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've continued to be in communication with DHS as the outbreak has evolved. We've also provided guidance 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're 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're 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's important to note that in 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'll be happy to answer any questions that you have.

REP. LYNCH: Thank you, Doctor. Ms. Kichak. Welcome.

MS. KICHAK: 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 workforce it needs to continue essential missions in an emergency. These include emergency staffing authorities, leave flexibilities, 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 front-line 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 and 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 were 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 policy 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, commuter 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 from home, as well as their procedures for communicating with employees who are teleworking. OPM stands already to provide guidance and support.

Thank you for inviting me here today and I'd be happy to respond to any questions.

REP. LYNCH: Thank you. Secretary 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 this 2009 H1N1 flu outbreak.

REP. CONNOLLY: Mr. Chairman, could I just ask the witness to move that mic a little closer. Thank you.

MS. DUKE: Yes, Mr. Connolly. 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 workforce's safety and security is always a top priority.

It's important to note 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 in the Departments of Health & Human Services, the Department of Labor, 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 in field offices nationwide. The department has also stockpiled two types of antivirals, with trademarks Tamiflu and Relenza dedicated for DHS workforce protection. DHS has on hand approximately 540,000 courses of antivirals targeted for its mission-essential workforce. Guidance on the use of that antiviral has recently been published.

Another element of planning the work was done in 2006 through several planning documents, including the DHA pandemic influenza contingency plan, publishing screening protocols for pandemic influenza in the air, land and maritime environments, draft federal inter-agency 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 inter-departmental pandemic influenza tabletop exercise. The purpose of the workshop was to facilitate in-depth discussions and highlight potential actions addressing departmental workforce protection during a pandemic influenza event. All DHS components were at this event, along with 13 other federal departments and agencies, with a total of 100 participants.

Effective communications 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 employees to follow procedures and recommendations of the CDC, and we have consulted with the Department of Labor's OSHA office regarding workforce protection.

Training has also been crucial for preparing DHS workforce in the event of a pandemic. The Office of Health Affairs within DHS developed pandemic awareness training and this, on DVD, is available to all 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' requests and to ensure health and safety of our DHS workforce.

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 emergency services medical personnel.

Finally, Health Affairs Office has been developing a more formal mechanism for providing medical advice to DHS components.

In conclusion, DHS remains dedicated to protecting the health and safety of our workforce 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 in response to the needs of the DHS employees throughout this outbreak and in the future. As I said, our workforce safety and security is a top priority. Thank you for holding this hearing, and I look forward to your questions.

REP. LYNCH: Thank you. As is often the case in Congress, we're 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 here and 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 sort of 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 sort of a snapshot of what my concern focuses on, a full-time Transportation Security Officer, or TSO, works an eight-hour shift. Individuals working the split shift have a ten-hour shift, four hours on, two hours off, four 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 JKF, it's about 9,000 passengers that they come into contact with daily, and we're talking about wanding them, checking their bags, checking identification, basically hands-on, literally, so that they have physical contact with these individuals. Nine thousand per checkpoint per shift and that's in New York, and in Chicago O'Hare, it's 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 eight hours, although I know from talking with them they work a lot of overtime because of the demands of the job which, you know, there can be a 12- or a 16-hour shift for those folks and a typical—I'm 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've received hundreds of phone calls as the chairman of this committee and affidavits, letters, e-mails, about the way our security personnel, you know, 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 there is no, well, DHS has not come up with a written guidance for addressing the issue of voluntarily wearing protective masks. Now these folks, as I say, have high contact.

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 incidents of swine flu in those states is probably 400 percent of what the national average is, so there's an issue here and it's empirical, what we're seeing. So we've got an issue with the Mexican border and a heightened concern and a heightened exposure for those folks, and I've got affidavits from a number of offices, 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, you know, number one, 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 that's a necessary protection that they need and I'd like to hear your response to that.

MS. DUKE: Mr. Chairman, thank you. We do, at DHS, agree that from each one of these instances there's 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.

REP. LYNCH: Let me just interrupt you because I don't want you just blowing through there. That's 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're supposed to have put on the mask if they're within six feet of that person. The problem here, as you probably can guess, is that there's a seven-day incubation period, number one. Number two, you've got to get close enough to these folks to do your job anyway, so you're already inside six feet, and as smart and as capable as my Customs and Border Patrol and my TSOs are, none of them are docs, and so they're going to have to make a determination that this person is ill and 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 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 masks. 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 a policy at this time, and it's something that we continue to look at each day as the statistics and the data for this round of H1N1 proceeds and the potential next round in the fall, as you say.

REP. LYNCH: Well, wait a minute. You're telling people if you know or suspect specifically an individual person has H1N1 or is ill to wear the mask?

MS. DUKE: Yes.

REP. LYNCH: Yeah, and you're saying that, apart from that determination that a person doesn't have the right to use the masks?

MS. DUKE: There is not 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.

REP. LYNCH: You've got to do this before the fact, though. You're saying now that it's progressed, you don't warrant it. It just doesn't hold water, you know, that whole argument. You know, you're telling people, wash your hands, you know, cover your mouth when you cough, stay home when you're sick, but these folks are on the front lines. You don't think this is a high-risk situation when you have these folks screening, you know, 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's critical, and we heard what our employees said and we will continue to evaluate it, but based on—to really warrant wearing masks in the workplace there has to be 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've said that before, but I have to keep going back to it. We consulted with the 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 equipment, such as the frequent washing your hands, the social distancing when you—

REP. LYNCH: Well, these workers weren't even allowed to use sanitizer and, apart from the masks, they also report that they weren't allowed a chance to go wash their hands or use sanitizer. They were kept on the line. They weren't allowed to have breaks, so they weren't allowed to, you know, so here you've got somebody who's checking maybe thousands of people. I'd hate to be the thousandth person in line after this person has already, you know, wanded 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, you know, one shift to another and, you know, that—that troubles me greatly.

MS. DUKE: My understanding is that TSA did change protocols on the cleansing, but I will check into that, Mr. Chairman.

REP. LYNCH: I'm going to let Mr. Connolly say a few things. We're going to come back to this again. Look, I'm not satisfied with your answer. I'm not 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 non-responsive to this situation of voluntary use of masks where these individuals feel they need to. And I'm receiving nothing here. You're going to continue to evaluate?

MS. DUKE: Absolutely.

REP. LYNCH: That's not good enough. That's not good enough. We'll legislate. If that's what I've got 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've got to legislate that they have the right to wear masks to protect themselves and their families and their communities, that's what we'll 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. They're protecting us. They're screening thousands of people coming in. If they're 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?

You know, and you look at the numbers in Texas, Arizona and California, and like I say, they're four times the national average. It's not an innovation thing; it's just a common sense thing that we're 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're saying that you're following the medical evidence. This is common sense. This is common sense. You know, in my prior job I used to have to wear a respirator as a welder. It's not a comfortable thing. It's not something that someone's going to leap to do. If they feel it's necessary, they will put the mask on. It's hot, it's stuffy. It's not something that people enjoy doing, so there's almost an inclination that people won't wear them, but when these workers feel that they're at risk and they need that protection, well, we've got to provide that, where it's 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, you know, we should be taking care of them the way they're taking care of the American people. And I don't think that's being done right now. I really don't.

And I think this bureaucracy, this back and forth about agency, 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'm going to defer. Mr. Chaffetz, you're recognized for five minutes.

REP. CHAFFETZ: Thanks, Mr. Connolly, appreciate it. Thank you, Mr. Chairman.

REP. LYNCH: Actually, it's whatever time you may consume. I over went my five minutes while you were gone.

REP. CHAFFETZ: I'll be brief, and my apologies for missing the first portion. I had a similar hearing next door, and I appreciate your understanding it.

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 agree that, as we took our actions, we had the safety of our employees in mind.

REP. 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? We were in a medical emergency, right? Or were we not?

MS. DUKE: Yes, we were.

REP. CHAFFETZ: What is the written standard? What is the policy? What should have happened, per the guide book? Is the guide book wrong?

MS. DUKE: By the guide book, I'll take that as meaning the OSHA policy, we're supposed to analyze the risk of employees and, based on the categorization of the risk to the employees, based on the threat of their work situation, either prescribe mandatory usage, voluntary usage or the mask—

REP. CHAFFETZ: So you're saying that at that stage, it had not kicked into the—voluntary use of the masks would not have kicked in at that stage?

MS. DUKE: We discussed voluntary usage of the masks. The H1N1—

REP. 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.

REP. 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.

REP. CHAFFETZ: And you said this was based on science, but everything I've 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 astronomical. It's 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 moving northward. 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.

If the written policies need adjustment, I would hope that you would return to this committee and that 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 culturally.

You know, I spent quite a bit of time in my career in Asia. It's commonplace, if you have a cold or you're somewhat sick, you wear a mask and nobody thinks a second of it—maybe a westerner who's 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 then what we went through and are going through at the border and with our TSA employees and a host of other federal workers who go through this. I just find it totally unacceptable. I concur with the chairman here.

I just want to ask one other thing of—pardon me, I forgot how you pronounced your name, but—

MS. KICHAK: Kichak.

REP. CHAFFETZ: Kichak.

What sort of drills or what sort of training or what sort 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 just wonder how well we would be prepared in order to execute on that.

MS. KICHAK: Well, each agency has been encouraged, and as I said, we've done—

REP. CHAFFETZ: If you could place the microphone there a little bit. Thank you.

MS. KICHAK: Each agency is encouraged to practice, and we've done town halls suggesting this. I know OPM has run several drills where we have sent a good segment of our workforce home and those are not people who normally telework, but we have sent them home to try to work for three or four days. We want to see what it's like for more than just an afternoon to try to get your work done so that people get a sense of what it's like, and so that's the kind of drilling we've done.

REP. 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 4.

REP. CHAFFETZ: Out of 100?

MS. KICHAK: No, out of ten. I'm sorry.

REP. CHAFFETZ: Maybe 40?

MS. KICHAK: Yeah. Yes, I think the one thing that we're learning is that you have to practice and then practice and then practice because your connectivity changes. You know, you do it and six months later it's out of date and you have to do it again, so we have had that.

REP. CHAFFETZ: Thanks, Mr. Chairman. Would my colleague yield?

MR. : Sure.

REP. CHAFFETZ: I just want to—Ms. Kichak, you gave it a four out of ten. What percentage of the federal workforce currently teleworks?

MS. DUKE: Six percent.

REP. CHAFFETZ: Six percent?

MS. DUKE: On a routine basis.

REP. CHAFFETZ: So, 40 percent's really grading of the curve?

REP. LYNCH: At this point the chair would like to recognize the gentleman from Virginia, Mr. Connolly, for five minutes.

REP. CONNOLLY: Thanks to the chair. Ms. Duke, if I could go back to you for just a minute because I want to follow up 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 voluntary use or mandatory use of masks, which that statement would imply there is some medical threshold by which you measure, you know, that would kick in the use of masks. And I guess I'd 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've got to differentiate, it seems to me, the nature of the job. If I'm a transit operator behind a glass panel and I never have human contact during the course of my eight-hour workday, that's one thing. On the other hand, as the chairman indicated, if you're a TSA worker, you're patting people down, increasingly you're engaged in near strip searchers. You're exposed to all kinds of things. You're dealing with hundreds of people, and let's say you're in El Paso and you're 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 prophylaxics, say to those workers, "If you feel more comfortable wearing a mask, guidance says have at it. You don't want to, you don't have to. We're not in a mandatory mode, but if that makes you feel safer and gives you a comfort level coming 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, there's 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's a known or a probable case, so if, for instance, a border patrol agent believes that a traveler is exhibiting symptoms and they decide they're going to refer the case, call in CDC, then that would fit, as an example, 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 the mask.

REP. CONNOLLY: Ms. Duke, if I may interrupt you there, that is contradictory to the evidence presented to this committee. We're hearing from the workforce quite the opposite, that as a matter of fact there is a general prohibition against voluntary use of the mask, 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.

REP. CONNOLLY: Well, that's good to know, Mr. Chairman, and I'm sure it will come as a relief to the workforce.

REP. LYNCH: Let me follow up on Mr. Connolly's question. You have given permission to Customs and Border Patrol agents—agents, not officers—to wear the mask? They all wear the masks voluntarily. I'm sorry, Border Patrol, so those Border Patrol agents under the instruction of your managers, your officers, they're all allowed to use the masks voluntarily and they do? So do you see what I'm saying? Your own policy for them is wear the masks and they're not—and that's 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, so you've got some great inconsistency here.

I also want to just share, you know, I've got a bunch of these affidavits that have come in from different offices all over the country, but this is one case. This is a Kenneth Eagan, and he actually took this serious enough to file an affidavit, a sworn statement under the pains and penalty of perjury, and he says, "I'm employed by the U.S. Bureau of Customs and Border Protection. I am currently assigned to the Las Vegas port of entry and 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 six 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 five days into the crisis, "I was scheduled to work primary inspection booth 8 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 N95 mask." I have a—this is what, an N95 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 N95 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 Gonzales, 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 Gonzales 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." He used the hand sanitizer to clean his hands and then removed the N95 mask. He said, "After I removed the mask, Chief Gonzales 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 Gonzales 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 got a lot of these.

This is from Lydia Paneda, who is also a U.S. Border & Customs Patrol Protection, Department of Homeland Security—San Diego. Her assignments, again, were processing inbound passengers, vehicles and pedestrians, so this is a land checkpoint, the largest land checkpoint in the world. Here you go. On or about April 28, 2009, Lydia Paneda was working at Otay Mesa, primary lane 4 and decided to wear an N95 respirator mask. "I had made this decision for several reasons. I had been fitted for an N95 respiratory mask. I had also been trained to fit other Customs and Border Control 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 N95 respirator mask while working, I was approached by Chief Kaid, 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 and, 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, you know, there are a lot of these affidavits that clearly indicate from various parts of the country that there's 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 masks, so, I mean, what do you say to that? And it's all around the country, so it's not an isolated case.

MS. DUKE: What I'd say to that is that during the first round of H1N1 we did consult with OSHA, and I'm 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're looking at right now is, should that process continue? Should it be individual, site specific first line supervisor discretion or, especially if there's another round of H1N1 in the fall, should we look at risks in the department and ensure consistency in our workforce?

REP. LYNCH: That's too late as far as I'm concerned. I'm going to yield five minutes to Mr. Bilbray from California.

REP. CONNOLLY: Mr. Chairman, I hadn't quite finished my--

REP. LYNCH: Oh, I'm sorry. I'm sorry. Please—

REP. CONNOLLY: And I know we have to vote. If Mr. Bilbray would indulge me just on one item.

REP. LYNCH: Sure. Go right ahead.

REP. 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—we had a press conference up here and he was kind enough to invite several of us who have introduced legislation, H.R. 1722, to promote telework in the federal government and, really, it's 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's 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 mark-up of H.R. 1722 so that we can codify progress within the federal ranks to ensure that telework is formally an option for our federal workforce. I thank the chair.

REP. LYNCH: Thank you, gentlemen. The chair now recognizes Mr. Bilbray from California for five minutes.

REP. BRIAN BILBRAY (R-CA): Thank you, Mr. Chairman. Ms. Duke, I was in local government long enough to know when I hear somebody wordsmithing. It's 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's no department policy against it?"

MS. DUKE: I guess I'm not sure by free choice. I mean, the employer has to manage the workplace and determine if it's 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 the masks in the workplace we learned over the last two weeks, yes.

REP. BILBRAY: My question to you is, 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: The evidence indicates that we have very few instances of DHS employees, just in general, having confirmed cases of the H1N1.

REP. BILBRAY: Okay. For the record, Mr. Chairman, I just think it is essential that those of us along the frontera point out that, unlike the airports, people do not cross, 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 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 into an airport. And I want to make that clear so that we understand what kind of situations 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.

REP. BILBRAY: Okay, I was informed there was. This six foot barrier kind of thing reminds me of some kind of dancing rule in our cabaret licenses in government. My question to you, the procedure that somebody in primary at a land entry have, are you aware of the procedure that they would go? Anybody want to talk about that? This six 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 six foot for primary is absolutely absurd. We're talking face-to-face discussions going on and then for a six foot issue to come up, do you have any explanation of how anyone in primary could operate their duties and still maintain a six foot barrier between them and the individuals making contact with them?

MS. DUKE: No, I believe most primary screening would be within six feet at a land port of entry.

REP. BILBRAY: Okay, what is the department doing today—and I apologize for being here late, but I had another hearing. I'm 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 front line 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 N95, even in the conditions that we're 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 the CDC guideline.

REP. 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 to by the supervisor.

REP. 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 three million people for ten years, and there's 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 just goes way over and, Madam, I'm sorry. I know you're having to carry quite a burden walking into this room, but, frankly, I think this is an indictment on the system that they worry 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's not going to be let up until it's corrected. Thank you very much, Mr. Chairman.

REP. LYNCH: Thank you. And just—I'm not going to beat this to death, but in the one breath you say CDC says it's not warranted, the masks aren't warranted, but in the next breath you've got all your customs, excuse me, your Border Patrol agents all wearing them voluntarily, so you're not relying on CDC because all those folks can wear the masks, but you've got 50,000 others that can't wear the masks and you've got whatever medical evidence you've got but you've made two different decisions where there really isn't a distinction between the jobs being done by those officers.

So you're not relying on CDC. I know you're trying to shift the responsibility to them, but you've already taken it upon yourself to make a dual policy between border agents and TSOs and, you know, Customs folks so—and ICE, those employees as well, who are not being allowed to wear the masks. That's an internal inconsistency that you've got within your own department.

Let me ask you, I'm 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'm 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?

MR. WEISSMAN: I think that's a policy issue that obviously I wouldn't make, you know, on my own, but I think that we have guidance, and the question of whether it's done in a regulatory way or it's done, you know, in a non-regulatory way, as long as it happens, as long as people do the right thing, and in the case of flu, you know, as long as people do, you know, not only respiratory protection but do the whole range of protections, you know, is what's really important. So let's not lose track of the fact, you know, that people need to do the range of other things that we've talked about.

REP. LYNCH: Right.

MR. WEISSMAN: You know, people have to wash their hands, you know, you 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, you know, should take into the account the full range of the hierarchy of controls, so I guess that my response would be: I wouldn't focus just on respiratory.

REP. LYNCH: I understand that and 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 that you could think of that would warrant refusing them permission to do that?

MR. 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 N95 filtering face piece respirators on a voluntary basis, and when the 2009 H1N1 occurred, they contacted us with the question of, "Well, would it be all right if we allowed them voluntary use of N95s 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 clear that just if people used those devices that they should also follow the other, you know, protections, you know, the other things that we've talked about, again, hand washing, distancing to the extent possible, you know, barriers, and also understanding, you know, the strengths and limitations of the devices, so that's the one anecdote I can give you of where that came up.

REP. LYNCH: Okay. I am going to have to run over and vote. How many votes? Three. Okay, so I should be back in about 25 minutes. Thank you. That would help.

Because of the continuous voting schedule back and forth, this testimony today and this hearing has been delayed to an unreasonable extent, I believe, so to try to accommodate all of the witnesses, and I know some members on our first panel had other engagements today that they had let us know of in advance, we decided that we would continue any questions with that panel in writing and their 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 at this subcommittee, we usually swear witnesses, so could I ask both witnesses to rise and raise your right hand. Do you solemnly swear that the testimony you will give before this subcommittee is the truth, the whole truth and nothing but the truth? 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 II. 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, California, 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 largest independent federal 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 four-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 five minutes for an opening statement. Thank you.

MR. BONNER: Thank you, Chairman Lynch. Protecting our federal workforce is pretty much a no-brainer. It's in everyone's interest, not just as a favor to the employees, but any sensible manager needs that workforce there. Despite the advances we've 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, healthcare primarily, the American Federation of 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're not just talking about the recent swine flu outbreak. We had the SARS outbreak in April of 2003 and yet here we are, more than six 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'm 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 reign 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 what a policy would look like for Border Patrol agents if they were told you can don the body armor when the bullets start flying. When you're within range of someone and they sneeze on you, it's too late. At that point you don't don the mask. You've 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're not doing the right thing for their employees. This is something that's a no-brainer. And one of the excuses that I've 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 N95 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's 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've 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.

REP. LYNCH: I would say accept that without objection. You can use that for the record.

MR. BONNER: 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's 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 that they hit the twilight zone when they hit the U.S./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 inroads in that direction. Thank you very much.

REP. LYNCH: Thank you, Mr. Bonner. President Kelley for five minutes.

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 are continuing 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 worked for the Department of Homeland Security, as we've 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 six foot rule that we've 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 U.S. involved people who had recently traveled from Mexico and, unless they came into the U.S. 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. 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 into 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 TBP. We contacted TSA and we contacted Homeland Security, and we got no answers. During this time a DHS spokesperson was quoted on the press as saying, quote, "The Department of Homeland Security has not issued an order saying our employees cannot wear masks," and the CBP spokesperson was quoted saying, quote, "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. It 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've 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 CBP 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 risk 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 U.S. from swine flu was a toddler. The second was a pregnant woman. Both had traveled from Mexico to the U.S. 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.

REP. 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.

MS. KELLEY: Yes.

REP. LYNCH: It sort of points out the absurdity, I think, of the Department of Homeland Security's position on this that—and I've 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 it's sort of—they're worried about the economic impact or the perception of our folks wearing masks. And all I can say is, you know, I remember when I first started to travel internationally the first time I saw security officers with heavy weaponry and 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's become the norm, and I think that if you travel in Asia now folks wearing those—these respirators is a very, very common sight. And so the balance of interest here clearly, I think, 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's a misplaced priority and we've got to get serious about protecting the people who protect our borders and our airports.

Mr. Bonner, you've highlighted in your testimony, as well, the distinction that some of your border agents were given the right to voluntarily decide, they were given this 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 or any facts that might militate to that type of policy?

MR. BONNER: Well, 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're trying to enter the country illegally.

REP. LYNCH: I see.

MR. BONNER: 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's a different universe of people that you're encountering. For example, if you're up in Oceanside, California, most of the people that you encounter have not crossed the border, so you're not—it's 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'm sure they'd be viewing things a lot differently.

REP. LYNCH: True. Ms. Kelley and Mr. Bonner, this is a fair question for each of you. What type of response have you had from, I mean, you've both written to these different agencies. You're 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 at CBP which, in my view, was a non-response, but I mean, I actually have a letter that I guess portends 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.

REP. LYNCH: Okay. Mr. Bonner?

MR. BONNER: Similarly, AFGE wrote to TSA and Homeland Security and has yet receive a response.

REP. LYNCH: Okay. The committee is actively considering legislation to accomplish—you know, it's 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's cumbersome; it takes a lot of energy, a lot of time, but I see no signals coming from these agencies that there's going to be any type of change soon, so I've discussed it with the members who are here today. They think we need to proceed and so do I.

What is (sic) your own thoughts on undertaking these changes legislatively instead of—and I know you're a collective bargaining agent for a lot of these employees—each of you? Talk to me about, you know, 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: In my view, if it has to come to that, obviously NTEU would be glad to work with the committee on whatever it is that that would require. I do have to say that I think it's very disappointing if it has to come to that. The first day that this became an issue, 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 employees could wear the mask at their discretion.

REP. LYNCH: You would think.

MS. KELLEY: That's what I thought. I thought this was going to be an easy one. That was on day one and then, you know, 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 fourth day I was getting a little impatient and then I started talking to everybody that everybody was pointing the fingers in the hopes that someone would just step up and do the right thing.

REP. LYNCH: Yeah.

MS. KELLEY: And here we are, I guess about, what, 18 days later, and no one has stepped up yet to do the right thing. And no one has even been willing to be up-front about why, you know, they say, on the one hand even when I listen to the testimony of the earlier panel and Ms. Duke said first—and I wrote this down. First she said—and I believe I heard this right. First she said the voluntary wearing of masks was not warranted and that that was Secretary Napolitano's decision. Then later she said there was no department level prohibition against wearing the masks. Well, that's a little different and then the third one I heard was that 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 that's 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 Mexican flight comes in, and there was one very clear oral directive given and that was no masks are to be worn. They were told that in musters. No one would put it in writing and no one will take responsibility for it.

So I think it would be a shame if it has to be legislated that someone would not just step up and do the right thing, but if that's what it takes, NTEU will be glad to work with you to help make that happen and avoid this in the future. So, 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 two years or five years, and we should not to ever be having this conversation again.

REP. LYNCH: Mr. Bonner.

MR. BONNER: I think we may be at that point. After the SARS epidemic six years ago, agencies were directed to come out with assessments, guidance. CBP came out with an assessment estimating that 40 to 50 percent of its workforce would be taken out of service due to a pandemic.

With the proper medical response, I would say that nearly all of the workforce 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 spin or their take on how to deal with this rather than protecting the employees and ensuring that they did not get sick 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.

REP. LYNCH: 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, you know, directly for the committee, there were some workers compensation issues where, you know, employees who came down sick with the flu, you know, their illnesses were contested because they said they could have got them at home—

MR. BONNER: Right.

REP. LYNCH: --instead of, you know, inspecting 3,000 workers at the border coming in from Mexico, so, you know, you've got these absurd cases, you know, not to mention what it does to morale.

MR. BONNER: And, indeed, the AFGE along with NTEU, would be more than happy to work with the committee in drafting such legislation and moving it along.

REP. LYNCH: You know, I appreciate all 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, think about this for a minute. You know, the silver lining of 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 a bit. It doesn't mean that the next 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, you know, snowballing and, you know, 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, you know, if I get some of this stuff on my clothes I'll come back and infect the kids. It's the same dynamic here. It takes a certain amount of courage under this situation and especially, you know, imagine if the rate of fatalities was elevated here.

Now you've got folks who are Customs and Border Patrol and TSOs and ICE employees responsible for working on the border. They know there's a threat there. They know that there's a likelihood that, you know, they'll be exposed and bringing that back to their families. It's tough enough just to go and do your job, never mind try to do it without adequate protection and without the support of your employer. It's disheartening, given the service that these folks are rendering to their country. And I just, you know, I would ask you to work with our committee, help us draft something that's tight enough to address the actual situation on the ground for especially those front-line employees, and we welcome your participation on that.

There may be some follow-up questions in writing from some of my colleagues who are not here. If you would, you know, we would welcome your responses in writing as well. I want to give each of you an opportunity if there have been any 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?

MS. KELLEY: I would just add that, you know, these front line employees who we've been talking about who, because of their work, really deal with just thousands of travelers every day, these are professional employees who exercise judgments every minute that they are on the job, so why not respect their judgments and let them make the judgment as to whether or not they think that they should wear a mask? You know, we have no idea how many employees would even 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 had hesitated from putting in my original testimony just to not digress from the subject, which is employees' right 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 in 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 employees remember. This is the kind of things 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 the statements they want about caring about employees, but actions really speak louder than words, especially on issues like this.

REP. 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, you know, whether we are giving them the protection that they deserve. 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 just to their own family but well beyond within their own communities and facilitating a pandemic event. So, thank you very much once again for convening this hearing.

REP. LYNCH: Okay. All right, thank you, and we will continue to work together. We appreciate your input, and Jill Christman here will be the point person for the committee in drafting this legislation, so you can work with her. Okay?

MS. CHRISTMAN: Be glad to do it.

REP. LYNCH: Thank you for your willingness to testify. I'm sorry about the long wait, but we really do appreciate your testimony.

MS. KELLEY: Thank you, Mr. Chairman.

MR. BONNER: Thank you.

REP. LYNCH: Have a good day. If we could possibly have the third panel, final panel. Welcome. It is the custom of this committee to swear in all witnesses who are to submit testimony. Could you please raise your right hand and repeat after me, do you solemnly swear that the testimony you're about to give to this subcommittee is the truth, the whole truth and nothing but the truth? Let the record show that both of the witnesses have answered in the affirmative. I'll offer a brief introduction of our witnesses and then each will be allowed to present an opening statement of about five minutes in length.

Dr. Thomas F. O'Brien has been a consultant in infectious diseases for over 20 years and a 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, co- director 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 healthcare delivery system. Welcome, gentlemen.

Dr. O'Brien, I'd like to give you an opportunity to offer an opening statement for five minutes.

MR. 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 front-line workers and the public in a crisis such as the current influenza pandemic.

I'll just say, briefly, that the Alliance for the Prudent Use of Antibiotics, APUA, 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 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 bacterial 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's totally dedicated to education and research concerning antibiotic resistance with a goal of preserving these lifesaving drugs. That particular interest plays into the influenza outbreak in two ways. One is that there is concern about 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 a lot of cases of viral pneumonia.

In the past there's 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 multi-resistant staphylococcal 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, hopefully, not to the influenza we've had or even to the coming influenza but is a potential added threat to a severe influenza outbreak.

And let's say that one of the problems about viral influenza-- this thing 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 the contagious illnesses there is none which is a wild card as unpredictable as viral influenza. Most of the other major infections there is a way to project forward what will happen. The influenza virus, 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's 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, their response has become much more sophisticated, and I think the congressional support they've had in getting better funding for their programs has helped enormously in this and 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. Your help in the broader understanding, given the biomedical capabilities now of nucleotide sequencing, molecular modeling and the new disciplines that are coming in, I would be willing to predict that going forward in another ten years that the viral influenza which will still be with us, with new threats, will be much more predictable. We will be able to pick up earlier new strains, we'll be able to get a sense of which way they're going, and I think by this broad biomedical research we'll enhance our ability to get out ahead of them sooner and to have a proper response to them, make vaccines faster and perhaps make better drugs and deploy them faster. 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 these issues going forward and as you can imagine even in the issues that have been discussed here, better predictability would help a lot.

It occurred to me on the subjects being 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 may be some of Undersecretary Duke's advisors, the 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 in their—somehow they got into the idea 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 mask wearing is. And it could be de-stigmatized by careful public health, by careful—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. As you point out, we've adjusted culturally to seeing armed guards in airport security and, as the ranking member pointed out, in Asia mask wearing would not be seen as a trigger of public concern because it's kind of random and haphazard and people do it anyway. And it just occurred to me that maybe that's a small element that could be introduced in this that might—and if it were true that some of the public health concerns were that, that might be minimized by paying attention to better cultural adaptation to mask wearing.

REP. LYNCH: Thank you. Mr. Levi.

MR. LEVI: Thank you, Mr. Chairman, and thank you for holding this hearing. I'm going 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 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 N95 respirators and so it's not clear that the Department of Homeland Security was violating what is current public health guidance. And I think that 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 in 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 and 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 and 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, 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 N95 masks, and I'd like to just 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 the agency 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's a wide range of federal employees who are consistently at risk, including those who are working in healthcare facilities who are at the greater risk, whom we need to make sure are being protected.

For critical employees I think we clearly need to know, in addition to the issue of N95 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 and 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 healthcare workers, that employers stockpile sufficient drugs for prophylaxis.

To the best of my knowledge, 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 appropriations process.

Similarly, if we move toward broader use of masks, whether it's N95s or face masks, again, have agencies stockpiled that? There's a tremendous production capacity problem, and if we are going to move towards use of these and there may be a point in the context of a pandemic where we would want workers to routinely wear N95 masks or surgical masks, we don't have enough in the stockpile to make that happen. So the guidelines would 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 healthcare workers, and I would say healthcare workers means people who are working in the VA and DOD hospitals and prison hospitals or investigators working for CDC, but also those people whom we ask to volunteer in the context of a pandemic, the various medical and volunteer corps that come forward. We need to make sure that we're 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 continue to be paid and, in fact, the co-payments associated with their care through their federal insurance will also be covered.

That's 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 as well, from other employees of the private sector as well. Those are areas that I think could, together, become a comprehensive package that would make, I think, their 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.

REP. 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 60,000 other employees the right to use the same masks, so there was sort of, you know, 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.

REP. LYNCH: Yeah.

MR. LEVI: And so, either be very consistent in adhering to the CDC guidelines or if you're changing it, then change it consistently across the department.

REP. LYNCH: Right. I think that would have been helpful (crosstalk) in this case. 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 security agency to have employees act as sort of an active surveillance. They're not being given gloves, they're not being given sanitizer, they're not being given masks, either N95 or dust masks, and yet they're being asked to conduct passive surveillance of passengers and, you know, people crossing the boarder.

From your standpoint, is there wisdom in that? I know we've got this six foot rule here somewhat. Is that a real distinction? I'm not sure if it's—

MR. LEVI: It's not clear to me what—Dr. O'Brien may be better able to answer whether in the context of the passive surveillance what level of risk there is or whether you actually need to wear gloves at a time like that. I think, just for lots of reasons that have nothing to do with flu, if workers want to wear gloves or, certainly, having hand sanitizer available is certainly something very prudent under any circumstances.

REP. LYNCH: Yeah. These folks are also being asked to wand these people, you know, to check they're in close physical contact with these people, as well, but they're also being asked to do this sort of analysis.

MR. O'BRIEN: Yes. I'm not quite sure that I understand what the passive surveillance is. They aren't being asked to test a level of infectivity by getting it themselves, I hope, but I don't think that's the issue. I think, just backing up a little bit, a huge element is the unpredictability. If it's a mild disease and very low level, it's sort of always present. It comes every year and there are a lot of fatalities every year from viral influenza and it happens over various periods of time. There is almost no uniform level of protection for that. It's too random.

On the other hand, in the 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 was contained at a time when, really, I think the expectation was that it could not be contained. So there's a range of appropriate responses that CDC in 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. I can't translate that into what it means day to day for who uses what, but I think the kind of general problem that's being dealt with here is trying to get the right degree of alertness for this week's risk.

MR. LEVI: And I think we saw, you know, to take it totally out of this context, but we saw in the CDCs evolving guidance around 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 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, you know, that's 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 the federal government at each stage, but the answer or the approach that you take at the beginning of an outbreak may not be the one that you would want to consistently maintain throughout the outbreak.

REP. LYNCH: Let me ask you, Dr. O'Brien, in your testimony you state that it's, and I'm quoting here, "It's necessary to link the U.S. domestic and the international public surveillance efforts." What type of assessment would you give this recent experience? It seemed that it took maybe a month between the time which the H1N1 epidemic was identified in Mexico City, and the time at which we as a government asked our public health agencies to get involved, to engage, 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—

MR. O'BRIEN: Well, I'd have to say first of all I wasn't really focused on the timelines 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 as new virus. This was something new, which is a critical thing and, secondly, that it was one to which we don't have immunity. It's enough different from the previous influenza viruses so we don't have immunity and that there were multiple cases turning up and the early evidence from Mexico that suggested actually overestimated the prevalence 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, I think, has pointed out maybe being concerned that they overreacted and said, well, you have to do this, you have to move very quickly. You only have once chance to get ahead of these things. You have to overreact, and I think WHO again sensitized, they've had some training in these years.

The general director of WHO was in China when SARS broke out, and the Chinese response to that was really very good, finally, and was also, I think, was responsible—was it Hong Kong and the responsible officer originally dealing with the flocks of chickens with the avian influenza flu, I think their response—they went to top level alert, as I recall, almost as soon as they could. So I think whether it's ideal or not, the national and global response was better than it has been previously. It was quicker and more alert than it has been previously.

REP. LYNCH: Let me ask you on this point, each of you. On the one hand, you had CDC and DHS saying that 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 that there's an inconsistency there and is that because I'm naïve and not understanding that or how do you—

MR. LEVI: It's a really good point, and I think one of the lessons from this experience—there are two lessons from this experience in terms of these pandemic levels. One is the United States 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's lots of stuff wasn't put in place. I mean, I would agree with Dr. O'Brien that the Public Health response was phenomenal in this 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. And so lots of triggers were not pulled in the planning—would not have been pulled if people followed the U.S. plan rigidly.

The problem with the WHO stages is that it does not make a distinction between 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 the seasonal flu, which may, at least so far, is not the case. It may change, but it's 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, you know, 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.

REP. LYNCH: Dr. O'Brien.

MR. O'BRIEN: Yes, I think Chairman Lynch made a very good point that has other implications about the mismatch between the high level response/low level, and I think because the high level response, the CDC, the World Health Organization, the highest level of response was so quick this time it may have made it clear, and 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, learning how to fine tune and today's subject is a perfectly good example of that, learning how to fine tune all these ramifications for all these different, ultimately everybody.

It's something that we've never had, as you point out, there's never been an influenza pandemic for almost a century now. There's never been one that's started close to the United States before, so that's a new—we've always had some time, so the quick response, the need for this country to be involved instantly almost in all these levels points out that people have to start thinking about a master plan about all the details.

I mean, this isn't my field and I'm really not an authority on what's been done on this, but I—just from what I've heard, it sounds as though there needs to be attention to, you know, as you draw out a chart of all this, what happens at what level and how quickly and who decides. What are all the options? And how does it—it strikes me that there may be room there for more systemization and more—

REP. 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'd 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, and we appreciate your patience while we had all these votes across the way, but I thank you very, very much for your willingness to testify and we really appreciate the work that you've done on this. Thank you.

MR. O'BRIEN: Thank you, Mr. Chairman and the subcommittee.

REP. LYNCH: The hearing is now adjourned.

END.

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