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Arkansas' prison agency confirmed on Monday that it has instituted a policy allowing employees who have tested positive for covid-19 to show up to work at units where the virus has created a critical shortage of staff.

Attorneys who represent 11 state inmates in a lawsuit over conditions at Arkansas Department of Corrections facilities alleged in a court filing Monday that the agency was allowing or requiring some employees who have tested positive to show up for work, putting more inmates at risk of getting sick.

In response to the court filing, a spokesman for the agency provided a copy of Health Department guidelines published on April 15 which state that infected staff members who are asymptotic may return to work at facilities where a "critical shortage of workers and critical activities cannot occur without the use of these workers." Those guidelines have since been adopted as department policy, the spokesman said.

Covid-positive employees are only allowed to work at units where inmates have already tested positive for the virus. As of Monday, only the Cummins Unit in Lincoln County has confirmed cases among its inmate population.

"It is impossible to imagine any employer permitting or requiring COVID-19 infected employees to work while they are infectious and can spread the virus to others," the court filing on behalf of the prisoners stated. "But, as demonstrated in this case, the substantial risk of infection did not deter Defendants since that risk would be borne primarily by prisoners."

Solomon Graves, a spokesman for the Department of Corrections, declined to say whether any staff currently working at the Cummins Unit have tested positive for the virus.

He referred further comment on the filing to the attorney general's office.

The filing was made after U.S. District Court Judge Kristine Baker declined to issue an emergency injunction against the Department of Corrections earlier Monday to force officials to provide inmates with better access to sanitation products and social distancing.

The outbreak at the Cummins Unit has infected 873 inmates, according to health officials who reported 14 new cases there Monday. Four inmates have died.

At least 54 staff members at the prison have tested positive for the virus.

EARLIER:

A federal judge on Monday morning declined to order the Arkansas Department of Corrections to enforce social distancing among its prisoners and provide better access to sanitation products as an emergency measure against the covid-19 pandemic.

The decision from U.S. District Court Judge Kristine Baker came on a motion for an emergency temporary restraining order that was filed last week by attorneys for 11 state inmates who have sued the state over what they allege to be a faulty handling of the pandemic at its crowded prisons.

The virus has caused an outbreak at Arkansas’ largest state prison, the Cummins Unit, where it has infected 860 inmates and killed four. The virus has yet to be detected at other prisons.

Attorneys for the NAACP, American Civil Liberties Union and Disability Rights Arkansas who are representing the inmates have requested a myriad of steps for corrections officials to take to protect inmates, including the release of older and medically frail inmates.

As a preliminary matter however, they sought an emergency order to provide inmates with more supplies of toiletries, alcohol-based sanitizer, at least six feet of space between their beds and more robust testing.

In her ruling Monday, Baker responded skeptically to the state’s arguments that corrections officials are doing all they can to contain the spread of the virus, however she declined to compel them to do more at this point.

“Given what is known about [covid-19], and on this record at this stage of the litigation, however, the Court cannot conclude that such an outbreak necessarily arises from deficiencies that likely demonstrate Eighth Amendment violations,” Baker wrote.

In a statement issued Monday, ACLU Arkansas Director Holly Dickson said "We are on track to file our reply seeking preliminary relief and look forward to our hearing Thursday in our continuing quest to obtain some relief for our clients and all people in state custody."

Baker has set a hearing for Thursday to consider a preliminary injunction over the full scope of the inmate’s requests.

This story was originally published at 9:41 a.m.

Correction: A previous version of this story listed an incorrect number of new cases at the Cummins Unit. The number of new cases is 14.

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