The spread of the highly contagious coronavirus (COVID-19) has reached pandemic status. Over 200,000 cases have been confirmed across more than 150 countries, and all 50 U.S. states. In other countries, the threat of the coronavirus has already impacted prison operations — lockdowns have been implemented in Italy and thousands of prisoners were released in Iran. In the United States, the media is highlighting the vulnerability of prison populations, and prison officials are discussing a nationwide prison lockdown.

Prison officials and correctional healthcare providers are doing their best to follow community guidance and best practices in corrections to prevent the introduction of COVID-19 into their facilities and address the virus if it is detected in their populations. The National Commission on Correctional Healthcare (NCCHC), a leading prison healthcare organization, has provided management and treatment guidance on its website. Ultimately, however, prison officials’ legal obligations are governed by the Eight Amendment’s “deliberate indifference” standard, which requires that prison officials not disregard a prisoner’s serious medical needs. A prison official cannot be deemed deliberately indifferent if he “responds reasonably” to substantial risks to inmate health or safety, “even if the harm ultimately was not averted” (Farmer v. Brennan, 511 U.S. 825, 834, 844-45 (1994)).

There is limited case authority applying the deliberate indifference standard to dangerous viral outbreaks on the scale of COVID-19, but guidance can be found in cases arising out of the swine flu epidemic that impacted prisons and jails in 2009. The following are basic steps that prisons and jails should consider in an effort to satisfy constitutional requirements:

1. Preventative Education and Hygiene Measures - A prison, like a long-term care facility, is particularly vulnerable to rapid spreading of diseases among populations in close quarters. To account for this risk, prison officials should (a) inform employees and prisoners about the coronavirus, including proper hygiene, etiquette (e.g. “social distancing”), and other means of preventing its spread; (b) educate employees — particularly those responsible for controlling access to the facility — on signs that a transferee inmate, a visitor, or an employee may be infected; and (c) provide hygiene supplies for employees and — to the extent possible and safe — to prisoners as well.

2. Maintain Reasonably Sanitary Conditions - While prisons may not be able to prevent the introduction of diseases such as the coronavirus into the population, corrections officials should take reasonable steps to sanitize contaminated areas and prevent healthy inmates from being exposed (see Ayala v. NYC Dep’t of Corr., 2011 WL 2015499, *2 (S.D.N.Y. May 9, 2011), which holds that a prisoner who contracted swine flu could not prevail on deliberate indifference claim because prison officials took reasonable measures to sanitize contaminated facility and prevent inmate infections). If reasonable steps are taken to prevent exposure and provide timely treatment to prisoners who may be infected, then the mere fact that a prisoner is exposed to and even contracts the disease should not be cause for finding a constitutional violation (see Jackson v. Rikers Island Facility, 2011 WL 3370205, **2-3 (S.D.N.Y. Aug. 2, 2011), where corrections officials were not deliberately indifferent to prisoner’s medical needs when they responded timely to request for swine flu treatment; Glaspie v. New York City Dep’t of Corr., 2010 WL 4967844, *1 (S.D.N.Y. Nov. 30, 2010), “mere exposure to swine flu does not involve an unreasonable risk of serious damage to . . . future health”).

3. Identify and Take Extra Precautions for High-Risk Patients - While the CDC and WHO advise that most healthy adults are at low risk of suffering severe symptoms or lasting effects from the coronavirus, many prisons and jails house inmates with preexisting and chronic medical conditions (such as heart disease, diabetes, and lung disease) that put them at higher risk of severe illness or death if they contract COVID-19. Prisons and jails should identify high-risk inmates, take steps to prevent their exposure, and provide timely diagnosis and treatment if a high-risk patient shows signs of a COVID-19 infection. Courts have held that a failure to respond timely to symptoms of a dangerous disease (such as swine flu) in a high-risk patient may be grounds for an Eighth Amendment violation if the inmate becomes extremely ill, suffers complications to pre-existing diseases, or dies (see Fraher v. Heyne, 2011 WL 5240441, *2 (E.D. Cal. Oct. 31, 2011), where a prisoner with a preexisting heart condition that “mandated extra care to avoid infection,” but was refused a swine flu test because her fever “was not high enough,” could state a claim for violation of her constitutional rights; compare Washington v. Harrington, 2012 WL 3763964, **2-6 (E.D. Cal. Aug. 29, 2012), aff’d, 549 F. App’x 679 (9th Cir. 2013), where an inmate suffering from asthma could not state deliberate indifference claim where symptoms of swine flu were recognized and monitored and inmate was ultimately transferred outside of prison for medical treatment).

4. Quarantine Sick Patients if Necessary - If COVID-19 is detected in the prison population, prison officials should consider using medical separation (or “quarantine”) to protect others, particularly high-risk patients. While due process concerns may impact community quarantine orders, such concerns are diminished in the correctional setting, where the constitution affords prison officials flexibility in housing decisions (see Jones-Bey v. Wright, 944 F. Supp. 723 (N.D. Ind. 1996), where prisoner’s placement in medical isolation unit after refusing to undergo tuberculosis screening did not violate Eighth Amendment or due process rights of prisoner).

5. Provide Treatment - If an inmate is diagnosed with COVID-19, prison officials and medical providers should provide proper treatment, isolation, and monitoring onsite and, if necessary, transfer patients offsite for treatment (see Washington v. Harrington, 2012 WL 3763964, **2-6 (E.D. Cal. Aug. 29, 2012), where an inmate suffering from asthma could not state deliberate indifference claim where symptoms of swine flu were recognized and monitored, and inmate was ultimately transferred outside of prison for medical treatment).