By Matthew Santoni

Law360 (April 30, 2021, 7:22 PM EDT ) More than 200 correctional officers at a Pennsylvania federal prison claim they're owed hazard pay for working in close proximity to prisoners, colleagues and facilities infected with COVID-19, according to a lawsuit filed in the U.S. Court of Federal Claims.

The 235 officers in the lawsuit say the pandemic meets the definitions of "physical hardship and hazards," entitling them to between 4% and 25% extra environmental pay or hazard pay differentials for their work at Federal Correctional Institution McKean, the medium-security prison in Lewis Run, McKean County. 

"Beginning in or around October 2020, and continuing and ongoing, plaintiffs have performed work with, or in close proximity to, COVID-19, the virulent biological, including, without limitation, work with or in close proximity to facilities, rooms, offices, workspaces, equipment, objects, surfaces, and/or individuals infected with the novel coronavirus that causes COVID-19," according to the complaint filed Thursday.

The officers are seeking back pay at the higher rate, plus interest and the recalculation of any overtime to account for the increased pay under the Fair Labor Standards Act.

According to the lawsuit, the U.S. Office of Personnel Management had issued regulations allowing for a 25% increase for hazard pay when employees work with or in close proximity to "virulent biologicals … likely to cause serious disease or fatality and for which protective devices do not afford complete protection."

OPM regulations also provide an 8% environmental pay bump for work with potentially harmful microorganisms and a 4% environmental pay differential for work that is close to but not in direct contact with such microorganisms, the suit says.

At the 1,000-prisoner facility, the suit says correctional officers were stuck surrounded by people, objects and surfaces potentially contaminated by the virus associated with COVID-19, without adequate protection to completely prevent them from becoming infected.

"FCI McKean is experiencing an ongoing outbreak of COVID-19 among its inmate population and correctional workers," the complaint said. "FCI McKean identified its first COVID-19 positive case at least as early as October 2, 2020. As of March 1, 2021, the cumulative cases among employees and inmates at FCI McKean have increased to more than 500 confirmed infections, with at least 5 recent active cases among FCI McKean's correctional workers."

Officers could come in close contact with potentially infected prisoners through regular pat-down searches, cell visits or other parts of their regular duties, the suit says, or they could transmit the virus among their coworkers through sharing tight spaces while entering and exiting the facility or via shared equipment.

Although the facility had established one wing as a "quarantine" ward for prisoners with confirmed cases of COVID-19 [which still required constant supervision and close contact with officers], the lawsuit claims prisoners still left the wing to use shared facilities, so the infection could and did spread between wings of the prison.

"Positive inmates regularly get out of their cells to use showers, phones and computers. In addition, the quarantine unit also houses inmates that have recently arrived at FCI McKean and those scheduled to be transferred to other facilities or be released," the complaint said.  

Correctional officers also could have been exposed to the virus through duties outside FCI McKean and brought it into the facility, the suit says, pointing to officers who were moved to assist another federal facility in Elkton, Ohio, in the midst of an outbreak there. Other officers were sent to assist the National Guard in Washington, D.C., in response to the Black Lives Matter protests in June or the storming of the U.S. Capitol by pro-Donald Trump rioters in January, and two had tested positive for the virus after coming back from the January assignment, the officers say.

"FCI McKean has not been consistently quarantining or testing these plaintiffs when they return from duty travel, even though many have been exposed to COVID-19 during their travels or have tested positive upon their return," the complaint said.

The lawsuit says the conditions at FCI McKean during the pandemic qualified as exposing them to "virulent biologicals," but the prison had refused to pay the correctional officers hazard pay or the environmental pay differentials. The Back Pay Act entitled them to interest on any wages they were owed, and the FLSA required any overtime pay to be recalculated for when the hazard and environmental differentials would have pushed up their base-pay rate, the suit says.

Counsel for the correctional officers and representatives of the U.S. Department of Justice did not immediately respond to requests for comment Friday.

The plaintiffs are represented by Sara L. Faulman of McGillivary Steele Elkin LLP.

Counsel information for FCI McKean and the Department of Justice's Bureau of Prisons was not immediately available.

The case is Adam Stewart et al. v. the United States, case number 1:21-cv-01293, in the U.S. Court of Federal Claims.

--Editing by Janice Carter Brown.

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