Note: this article, featuring our Legal Director Tom Devine and our client Jay Brainard, was originally published here.

This Kansas Official Pushed the TSA to Take COVID-19 Precautions on a National Level

When Jay Brainard first heard in January that a deadly virus could spread from China through air travel, he knew he would have to start taking extra precautions right here in Kansas.

Like many, the Wichita-based official with the Transportation Security Administration in Kansas didn’t know too much about the new coronavirus yet. But he did know it likely spread in ways similar to other viruses, and there were basic steps TSA employees could take early on: don’t touch your face, sanitize your hands, wear a mask and use personal protective equipment when you’re around others who could be infected.

Brainard worked to make sure those measures were taken in Kansas airports by early March, when COVID-19 spread took the spotlight in the U.S. However, he said he didn’t see those standard safety efforts adopted nationally by the TSA. He grew increasingly worried about the TSA’s role as the coronavirus spread across the country, especially if asymptotic TSA screening employees were in close contact with passengers, or vice-versa.

So Brainard raised his concerns internally and then on the national level, using whistleblower complaints and protections to draw attention to what he saw as major issues. It soon led to change.

Now, TSA employees in airports across the country are required to wear masks and gloves. They’re changing gloves between passengers they come in contact with and between bag searches where they touch someone else’s items, according to Brainard. The agency is also working to put more barriers at checkpoints between TSA employees and passengers, he said.

Brainard is a Federal Security Director with the Transportation Security Administration, and the top TSA official in Kansas. He oversees all the commercial airports in Kansas, which includes Wichita, Topeka, Manhattan and others. He’s been based in Wichita for about five years but has been with the TSA for nearly 19 years in various positions across the country.

A spokesperson for the TSA said the agency can’t comment on Brainard’s allegations specifically but that COVID-19 safety precautions had been in the works at the TSA and were evolving prior to Brainard going public with his concerns.

“While we acknowledge TSA Administrator David Pekoske and Mr. Brainard spoke recently, and we believe whistleblowers provide a valuable service to government, internal feedback comes from many different sources and we listen to all of them,” the spokesperson, Mark Howell, said in a statement.

“In fact, Administrator Pekoske has been holding weekly Town Hall meetings since March 17 so that he could hear directly from employees about matters that are important to them. Most importantly, we take the responsibility to protect both passengers and our employees from COVID-19 very seriously. TSA has adopted a continuous improvement approach throughout the pandemic, and with each health and security enhancement, we have made announcements, including the ones on May 7, May 21 and June 30. Internally, we are consistently communicating about our COVID-19 mitigation efforts to help contain community spread of the COVID-19 virus,” the statement read.

The May 7 announcement said TSA employees would be required to wear face coverings while at screening checkpoints. On May 21, the agency reminded passengers about measures such as social distancing and mask wearing ahead of the Memorial Day weekend. Then on June 30, the agency launched a “Stay Healthy. Stay Secure” campaign.

There are some safety precautions that haven’t been fully established yet, Brainard said, and there’s still work to do. But he’s happy to see some of the more basic health recommendations followed.

Even though it might seem like he found results from his whistleblower complaint fairly early on, it didn’t happen overnight, Brainard said.

It was early March when he first raised an issue internally with the TSA, he said. He wrote emails, had conference calls and even brought his concerns up with members of Congress, Brainard said. But by April, he said there was still no action to make commercial air travel more safe during the COVID-19 pandemic.

“This is something that’s been going on, and the entire time you’re trying to compel the agency to take action and they’re not listening to you,” said Brainard.

He could see early on that commercial air travel would play a large role in the potential to further spread the virus, too. When confirmed cases began to “blow up” in different regions of the U.S. in early March, Brainard saw air travel’s impact, and knew the TSA would need extra precautions if it was going to make a difference in how quickly the coronavirus spread.

As the infection rate in TSA employees rose, he watched. As people began to die in larger numbers from complications related to the virus, he watched.

Finally, he knew he had to go public with his concerns. He worked with Tom Devine, legal director of the Government Accountability Project, a nonprofit that protects whistleblowers.

In all, TSA has had 1,171 federal employees test positive for COVID-19 as of Friday, the most recent day data was available, according to the agency. Six TSA employees have died as a result of the coronavirus, it said. There are nearly 64,000 TSA employees total, according to the agency spokesperson.

At the Wichita Dwight D. Eisenhower National Airport, one TSA employee, a screening officer, has tested positive for the virus as of Friday. Data for other Kansas airports was not immediately available.

To make a message of safety universal, Brainard knew the TSA had to take top-level action, which he did not see happening in the early stages of the global pandemic, he said.

The precautions matter at every little airport, Brainard said. It’s not just the big hubs, because even the smallest airports feed into big cities. That’s why commercial air travel workers are so important in preventing further spread of COVID-19 across the country and even the globe.

Similar to within the TSA, workplace safety complaints have escalated over the course of the coronavirus pandemic, so much so that COVID-19 complaint data is updated online weekly by the Occupational Safety and Health Administration arm of the U.S. Department of Labor.

If you do have a serious concern about coronavirus safety methods, Brainard said, you should always try to first raise an issue internally. Doing so allows the employer to have a fair chance to respond, Brainard said. It also provides an opportunity for you to offer factual information to help convince your employer something needs to be done.

However, he acknowledged not everyone can be a whistleblower and some have fears of retaliation should they speak up. If it’s weighing on your conscience, Brainard said, you might want to find an outside entity to report your issue to.

Even though his complaints weren’t addressed overnight, Brainard said the TSA moved fairly quickly to act in response to his concerns, considering all the red tape that usually comes along with whistleblower complaints such as these. He hasn’t seen the agency act that quickly in his two decades, he said.

“You gotta keep ringing the doorbell and knocking on the door until they respond,” Brainard said.

“At the end of the day, the agency is headed in a good direction now.”