Avenal’s Prison Labor Contract Allows Actions The CDC—And Kings County—Warned Could Spread COVID-19

Nov 20, 2020

Ed Welker is relatively new to Avenal State Prison. He’s been incarcerated there only since March. But when he was recently moved to a new dorm in a different yard, he saw a familiar face. “One of the officers that are working right now in the building that I’m in, in the 2 yard, is the regular building officer over on the 5 yard, where I just came from,” he says.

Early on in the pandemic, the prison halted college classes and other programs that involved incarcerated men mingling with those in other yards. And so Welker says he and other inmates were shocked to learn that correctional officers can work their main shifts in one part of the prison and overtime in another—even if one of those is a quarantine area. “We were like, wait a second,” he says. “If you normally work over there, and we know that there’s positive cases over there, what the hell are you doing coming over here?”

More than 3,300 inmates and staff have tested positive for the virus at Avenal, a total that’s higher than any other prison in California and possibly in the entire country. Eight incarcerated men have died.

The union that represents prison guards confirms that picking up overtime shifts in different facilities falls under its contract with the state prison system. In contrast, county public health officials, and even the Centers for Disease Control and Prevention, warn against this practice, cautioning that it poses a risk of spreading the disease.

“They should just work overtime on that same yard, not go to another yard,” says Thai Tran, also incarcerated at Avenal. “They’ll bring it back over here, and that’s how the infection spreads from other yards.”

The risk may be even greater because a recent report from the state’s prison watchdog agency shows many prisons are not following basic safety precautions. California’s Office of the Inspector General observed staff members failing to properly wear masks at two-thirds of the prisons it visited. Social distancing wasn’t consistently observed, either. “They’re putting our lives in danger,” says Welker.

Avenal reported its first case of COVID-19 in mid-May in an employee. Soon after, public health officials in Kings County, where the prison is located, tried to get ahead of a full-fledged outbreak. “We issued six health officer orders” to the warden of the prison, says Public Health Director Edward Hill.

Some orders addressed testing and symptom screening, others protocols for quarantining and isolating, and one required the prison to modify work assignments to minimize employee movement until the outbreak was under control. “There will be no movement or reassignment to other yards or positions until further notice,” reads the order dated May 29. “These work assignment modifications are necessary to mitigate the spread of the virus throughout the prison.”

The response arrived on June 5 from the California Department of Corrections and Rehabilitation (CDCR), which oversees the state’s prisons. “CDCR’s legal counsel sent us a letter stating that we didn’t have authority within their fences,” Hill says.

“The State is not an entity under local health officers’ jurisdictions, and thus local health officer orders are not valid against the State. As a State agency, CDCR and its institutions will follow the direction from CDPH [the California Department of Public Health],” reads the response from CDCR General Counsel Jennifer Neill.

Online guidance for prisons issued in March by CDPH doesn’t mention anything about modifying staff work assignments. When asked for specific information about staff movement, the CDPH communications office referred the inquiry back to CDCR, which declined an interview for this story but did answer some questions by email.

“The California Department of Corrections and Rehabilitation (CDCR) and California Correctional Health Care Services (CCHCS) limits staff movement to the extent possible, and in line with labor organization agreements, to reduce the contraction or transmission of COVID-19,” wrote CDCR Press Secretary Dana Simas. Another communications representative wrote that staff undergo bi-weekly testing and are required to wear PPE as well as follow social distancing requirements, and that CDCR follows the recommendations of the Centers for Disease Control and Prevention (CDC).

The CDC, however, cautioned that staff shouldn’t be working cross-shifts in multiple areas of the prison. “If there are people with COVID-19 inside the facility, it is essential for staff members to maintain a consistent duty assignment in the same area of the facility across shifts to prevent transmission across different facility areas,” reads correctional guidance updated by the federal agency in October (emphasis by the CDC).

A memo to a different state prison from public health experts at UC San Francisco and UC Berkeley echoes the CDC’s warning. “At present work shift plans are inadequate from a public health perspective,” reads the memo, issued in June to San Quentin State Prison in an effort to quell an outbreak that has so far has killed 28 incarcerated men and one staff member. “For example, we learned about staff who were working in the Medical Isolation Unit (Adjustment Center) during the shift and were scheduled to work the next shift in the dorms. This is an enormous risk for the spread of COVID-19 between units,” the memo continues.

The refusal of CDCR to heed Kings County’s health orders has been frustrating for County Supervisor Craig Pederson. How can the state task the county to protect public health, but then not cooperate with the state’s requests? “When the state’s asking us to perform, you’d expect the state to be performing at the same level, and that just wasn’t the case,” he says.

That’s especially notable, Pederson says, because the state has asked other businesses, in Kings County and throughout the state, to scale back due to the virus. “It just didn’t sit well with me that you have a set of labor decisions impacting a community that has another set of limitations,” he says.

In an email statement, Glen Stailey, President of the California Correctional Peace Officers Association, the union that represents correctional officers, didn’t deny that they could be vectors for the virus. “Any sort of movement would allow for the spread of COVID, and our members have the right to move from one yard to another…We cannot pinpoint the exact reason” for its spread, he wrote.

But whether staff really have been a factor in Avenal’s massive outbreak, inmate John Walker doesn’t fault them for doing their jobs. “There’s a lot of pressure on the COs, and I think for a lot of them, it wasn’t their fault. Their higher-ups are the ones pressuring them to do these things,” he says.

Likewise, the Office of the Inspector General didn’t blame employees for their safety protocol infractions, especially since the agency also observed incarcerated people ignoring the requirements. “The frequent noncompliance by staff and incarcerated persons was likely caused at least in part by the department’s supervisors’ and managers’ lax enforcement of the requirements,” the report reads.