Pa. prisons won’t mandate COVID-19 tests for staff, even as outbreaks grow frequent and deadly

In the last week, 150 people in Philadelphia jails have tested positive for COVID-19, a sudden surge that led the city to cancel all court appearances and send the entire system into total lockdown. It’s a similar story in Pennsylvania state prisons, where at least 2,300 prisoners have been diagnosed with the virus since the end of October, and at Philadelphia’s Federal Detention Center, where 242 detainees were infected during that same time frame.

All those institutions have something else in common: They do not require staff to take COVID-19 tests — and, in the case of the city and federal facilities, do not even offer them.

That’s despite guidance from the Centers for Disease Control and Prevention that any broad-based testing initiative should include staff as well as prisoners. “Because staff move between the facility and the community daily, the risks of introducing infection into the facility from the community and/or bringing infection from the facility back into the community is ongoing,” the CDC noted.

California, Massachusetts, Michigan, and North Carolina have all mandated staff testing for COVID-19 in some or all state prisons.

Though groups including the American Civil Liberties Union of Pennsylvania, the Pennsylvania Institutional Law Project, and Amistad Law Project have urged Pennsylvania to follow suit, Department of Corrections officials have so far declined.

In the past, the DOC has said it can’t legally force testing on staff. But Ryan Hancock, a labor lawyer based in Philadelphia, said that’s not the case: The Equal Employment Opportunity Commission has issued guidance making clear that normal rules barring employer testing are waived during the pandemic, at least in workplaces where testing is a business necessity.

Meanwhile, the situation inside state prisons has worsened. Among DOC staff who have opted for tests in the past month, 87% have come back positive, representing 1,290 employees. But a majority of staffers have never been tested, even as cases have been confirmed in every state prison — including State Correctional Institution Laurel Highlands, which houses many elderly and infirm prisoners. Eight inmates died there in just the last month.

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Among those sickened in this fall’s resurgence was Aaron Fox, 76, at SCI-Frackville. He said he requested a test after those around him grew ill and he developed a cough. He was moved to the prison infirmary, then to what he described as “the hole” — a restricted housing unit being used for quarantine. There, he was celled with a 68-year-old man and assigned the top bunk. Too weak to make the climb, he said, he slept on the floor until he was relocated. “The culture of the hole is hostile, antagonistic, and volatile,” he said. “COVID don’t make the hole a hospital!”

Still, John Eckenrode, vice president of the Pennsylvania State Correctional Officers Association, said the union would oppose a testing mandate. He said staff who need testing are largely seeking it out.

In Philadelphia, the situation is different: Both prisoners’ rights groups and the correctional union support universal testing.

City Council is expected to hold hearings on the outbreak at the county jails later this month, said Councilmember Kenyatta Johnson, who said it’s in response to a growing outcry from those with family in city and state facilities. “We’re going to be asking questions around the availability of PPE, making sure testing is available, and making sure inmates’ health is a priority during this COVID-19 pandemic,” he said.

In the interim, the lack of testing has those with loved ones in prison panicked. Linda Lane said her son, Levaughn Murray, is asthmatic and already caught COVID while in jail in Philadelphia. He decried what he said is inhumane treatment, including 23 or more hours a day in a cell, in order to contain the outbreak. “Who’s bringing it in there?” Lane said. “The guards have to be bringing it in there.”

Robert Cohen, a correctional health-care expert brought in by a team of lawyers who have sued on behalf of prisoners, specifically advised weekly testing of staff and monthly testing of prisoners. Su Ming Yeh, of the Pennsylvania Institutional Law Project, proposed a range of testing models, like random sampling or pooled test analysis, to manage the cost.

Tom Gribbin, a lawyer with Willig Williams Davidson who represents the correctional officers’ union, said rolling out testing is necessary but should be subject to bargaining. “Local 159 has encouraged mandatory testing and has proposed other safety protocols that the city has ignored,” he said.

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However, there’s no plan to begin offering staff testing on site, a city spokesperson confirmed. The spokesperson did not provide an explanation for that decision and declined an interview request.

Nor are there plans to begin testing workers at Federal Detention Center at Seventh and Arch Streets in Philadelphia, where 242 detainees and 34 workers have been confirmed COVID positive since Oct. 30. On Dec. 4, experts for the Bureau of Prisons and for prisoners suing over what they say is a dangerously lax response filed dueling reports on the situation at the FDC.

Homer Venters observed a “facility that has lost control of identifying new cases of COVID-19 illness, triaging who is ill, and providing timely and adequate care.” He urged ongoing testing of all units and staff every two weeks until no new cases are identified for a 14-day interval.

The expert for the Bureau of Prisons, Rebecca A. Lubelczyk, said on the contrary that the FDC’s current mitigation approach is adequate, the infection of one-quarter of its prisoners notwithstanding. Biweekly testing, she said, “is impractical, extravagant, and not derived from any published guideline.”