Note: this article, featuring our client Jay Brainard and our Legal Director Tom Devine, was originally published here.
TSA Head Orders New Virus Safety Measures After Meeting Whistleblower
The Office of Special Counsel, an independent federal watchdog, had ordered the Department of Homeland Security last month to conduct an investigation into the whistleblower’s allegations. The complaint was filed by Jay Brainard, the TSA’s director in Kansas.
Brainard said in a statement that the new measures mean the agency, “has taken necessary steps to make air travel safer for the public and enhance protective measures in the workplace for our front line employees.”
R. Carter Langston, a TSA spokesman, confirmed that Brainard had spoken with TSA Administrator David Pekoske and that the changes outlined had been implemented.
He said the agency appreciates feedback from whistleblowers as one internal source among many.
“Most importantly, we take the responsibility to protect both passengers and our employees from COVID-19 very seriously,” Langston said in an email. “TSA has adopted a continuous improvement approach throughout the pandemic, and with each health and security enhancement, we have made announcements.”
Such investigations can take months but Tom Devine, Brainard’s lawyer and the legal director at the Government Accountability Project, said both the special counsel’s office and the TSA moved quickly, culminating in a meeting last week between Brainard and Pekoske and the new safety measures.
The pace stunned Devine, who has been working with whistleblowers for four decades.
“The system responded with lightning speed to the truth about a significant threat,” he said. “I’ve never seen the truth make a difference so quickly.”
A spokesman for the special counsel’s office declined to comment.
Air travel dropped dramatically in the early days of the coronavirus pandemic, from a typical 2 million passengers a day to fewer than 100,000 on some days. But the number of travelers has been steadily increasing, a trend that has shown no signs of reversing, even as the virus appears to be taking hold again in many states.
Pekoske met with Brainard last Monday, according to Devine, and the agency imposed the new measures before the July 4 holiday weekend. Nearly 2.7 million people were screened by the TSA between Thursday and Sunday, according to the agency.
Brainard alleged in a June 3 complaint that the TSA had fumbled its initial response to the crisis, refusing to let state-level leaders hand out protective masks to front-line workers, even as the virus quickly sickened officers across the country; 997 TSA employees have fallen ill and six employees and a contractor have died.
The special counsel’s office ordered the investigation June 18, determining that Brainard’s allegations had a “substantial likelihood” of being true. The office doesn’t have the power to conduct its own reviews and relies on government agency leaders to investigate and report their findings.
The TSA said then that it was following guidance from the Centers for Disease Control and Prevention in handling the virus.
In the letter to the Office of Special Counsel, Devine wrote Brainard wouldn’t have been able to succeed in getting change without its help.
“America’s flying public owes your agency a debt of gratitude,” he wrote.
The TSA had previously revamped its security screening process in an attempt to reduce the chance of spreading the virus. Officers were ordered to wear masks and the agency sought to install clear plastic barriers at checkpoints to separate officers from travelers.
But Brainard alleged that those procedures contained gaps.
The agency’s new actions don’t resolve all of his concerns. Brainard also alleged that officers hadn’t received specific training on responding to the outbreak and did not have guidance on how to handle passengers who appear to be sick.
Union leaders representing aviation workers, with the backing of Democrats in Congress, have clashed with airlines and the Trump administration over safety at airports and onboard planes. With only limited direction from the federal government, airlines and airports have been adopting their own approaches, leading to a patchwork of a different approaches.
While the government has declined to impose new rules on the industry, it last week issued guidelines that recommend limiting the number of passengers on flights and changes to check-in procedures to encourage social distancing.