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Law360 (April 23, 2020, 11:00 PM EDT) -- New York City is putting the lives of thousands of correction officers, captains, wardens and their families at risk by compelling jail staff to work extra shifts in the midst of the coronavirus pandemic, their unions said in a lawsuit filed Thursday in state court.
Mandating that jail staff work extended hours, including 24-hour triple shifts, on Rikers Island and at other city jails violates officers' constitutional right to bodily integrity, according to a complaint submitted Thursday in Queens Supreme Court.
Staff are working longer hours because many are out sick, according to the suit.
"The inability to sleep for a solid day as is the case with triple shifts is a direct invitation to infection and disease," the unions wrote. "In the age of COVID-19, triple shifts may be a death sentence."
One Rikers Island correction officer told Law360 that double shifts also proved grueling. "I felt my body wearing down from doubles every day," the officer, who asked to withhold their name, told Law360. "I said, 'I'm tired. I worked 16 hours straight, with six or seven hours of sleep, and you want me to stay here and do another double?'"
The suit also alleges that the city has violated workers' right to bodily integrity under the due process clause of the New York State Constitution by failing to require infected staff to test negative for COVID-19 before returning to work.
The absence of any retesting protocol poses "an unacceptable risk of infection or reinfection," according to the suit.
"The result is just an increased [number] of infected employees and reinfection which further challenges the [New York City Department of Correction] to meet staffing requirements," the plaintiffs wrote in an accompanying application for a temporary restraining order.
Thursday's lawsuit was filed by three unions, representing 10,000 jail staff: the Correction Officers' Benevolent Association, the Correction Captains' Association and the Assistant Deputy Wardens/Deputy Wardens Association.
To date, 587 city jail staff and 323 inmates have tested positive for COVID-19, according to the complaint. Nine staff and at least one inmate have died of COVID-19.
The city may be struggling to fill shifts during the pandemic, the restraining order application acknowledges.
However, this "is simply not a justification for subordinating employee health and safety and, in light of dangerous viral pandemic, the health and safety of family and other loved ones ... to the operational needs of the DOC," it states.
The Department of Correction might address the staffing shortage by allowing "modified duty" correction officers facing disciplinary charges to return to work, according to the suit.
"The pool of modified duty COs whose modifications do not stem from inmate care errors or omissions could work to alleviate the burden on those COs forced to work triple shifts," the restraining order application states.
Thursday's complaint also references a suit filed earlier this month in Queens, in which the correction officers union accused the city of failing to provide protective equipment to jail staff. That case settled after the city agreed to provide more masks to correctional staff and extend testing to staff across the city.
"It took a lawsuit to force the DOC to distribute masks to those who need them, to sanitize facilities and to establish testing sites," COBA President Elias Husamudeen said in a statement. "Now the DOC is requiring officers to work triple tours and refusing to require return-to-work negative tests before ordering sick officers back to work."
Nicholas Paolucci, a spokesperson for the New York City Law Department, said his office is reviewing the case.
"This administration is deeply concerned about the health and safety of its employees and has been following [Centers for Disease Control and Prevention] guidelines and addressing challenging staffing issues to keep people at DOC facilities safe," Paolucci said in a statement. "We take seriously the issues raised by the complaint and will review it carefully."
In a tweet Thursday night, Mayor Bill de Blasio pledged to stop triple shifts. "The idea of a 24 hour shift being imposed on our Corrections Officers was a mistake and NEVER should have happened," he tweeted. "To New York's Boldest: you're vital to keeping our city safe. I promise we have your back and that this will never happen again."
The Correction Officers' Benevolent Association is represented by Steven A. Isaacs, Howard G. Wien and Liam L. Castro of Koehler & Isaacs LLP. The Correction Captains' Association is represented by Vincent F. Pitta, Bruce J. Cooper and Joseph M. Bonomo of Pitta LLP. The Assistant Deputy Wardens/Deputy Wardens Association is represented by Paul S. Linzer and Stephen McQuade of Certilman Balin Adler & Hyman LLP.
Counsel information for the city of New York was not immediately available.
The case is Correction Officers' Benevolent Association et al. v. City of New York, in the New York State Supreme Court, Queens County. The case number could not immediately be determined.
--Editing by Bruce Goldman.
Update: This story has been updated with additional information and comments from a correction officer and New York City Mayor Bill de Blasio.
For a reprint of this article, please contact reprints@law360.com.
