Ag Employers, Workers File Legal Challenge to COVID Testing Mandate

To say that the state health department mandate ordering COVID-19 testing by farm employers with 20 or more farmworkers has not been well received on the farm front would be an understatement. In fact, they have filed a legal challenge to the order and the case is headed to the courts.

The emergency order was issued by the Michigan Department of Health and Human Services back on August 3rd. According to the complaint, filed this week, farm employers and farmworkers have been employing COVID-19 prevention practices, both at work and outside of work, well before the MDHHS Emergency Order was put into place including wearing masks, social distancing, and utilizing disinfectants, according to Farm News media.

Grand Rapids-based Varnum LLP formally filed motions on Tuesday in Western District Federal Court on behalf of individuals affected by the testing mandate, including farmworkers and farm employers seeking an injunction to the emergency order, which they argue is a violation of their civil rights.

Migrant Legal Aid, a nonprofit organization that has been advocating for migrant workers’ rights since 1973, and the Michigan Farm Bureau, the state’s largest general farm organization, both support the legal challenge of the emergency order as a violation of the Latino community’s civil rights.

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According to Michigan Farm Bureau Assistant General Counsel Allison Eicher, there’s no question that the MDHHS emergency order is targeting a class of individuals who also happen to make up the largest class of farmworkers in the state, without regard to COVID-19 symptoms.

Eicher contends, “The order clearly targets the Latino community, and the state has been really clear that they’ve singled out this minority class,” and adds, “No other group in the state is subject to mandatory testing for work except for nursing home workers.”

But even then, she said there’s a significant difference, noting, “If the nursing home worker chooses not to be tested, they still get to go to work; they just can’t interact with patients.” Eicher charges, “If a farmworker chooses not to be tested, they don’t get to work until they can provide a negative test. That’s what is so shocking to the industry — it’s just a blatant targeting of migrant farmworkers.”

According to Eicher, producers and farmworkers have also questioned the unrealistic timetable for implementation, which required farm employers to develop a “Compliance Plan” by August 10th, with all mandated testing to be completed by August 24th.

In the effort to claim bragging rights as the “national leader” in COVID-19 protections of migrant and ag workers, Eicher says the MDHHS emergency order is ignoring two basic realities — farmer compliance efforts above and beyond previously issued executive orders, and that most farm operations have family members directly involved with migrant farmworkers daily.

Eicher argues, “Farmers are doing their absolute best to manage their business through this crisis, while also placing the highest priority on the health and safety of their employees which typically includes members of their own family, taking extraordinary measures to insulate them from the risks of exposure to COVID-19.”

Eicher says, “Ordering a small group of people to be tested, especially a minority group, and not ordering any other group of people to be tested, raises serious discrimination and equal protection concerns.”

Even though the MDHHS order is an emergency order — issued by MDHHS Director Robert Gordon — not an executive order issued by Gov. Whitmer, Eicher said the MDHHS mandate relies on the authority of previously issued emergency orders.

Eicher concludes, “It’s a distinction without a difference,” adding, “MDHHS cites a lot of the same authority as a public health emergency, but they rely on Gov. Whitmer’s executive orders to implement the emergency order’s testing mandate.”

Even though the MDHHS emergency order is now facing a legal challenge, the state does expect compliance with this order, according to Eicher, including the required Compliance Plan.

For their part, the Michigan Department of Health and Human Services has issued the following statement regarding the:

“This is a meritless lawsuit and an unfortunate use of valuable time in a difficult period. In just the last week, the number of new and outstanding COVID-19 outbreaks related to farms, food processing and migrant camps nearly doubled from 11 to 21. The purpose of requiring testing in these places is to save lives. The order applies regardless of race. The department is covering the costs of testing and offering housing and other supports to help both workers and their employers. We appreciate that many producers and processors are working with us to save lives and secure the food supply, and we urge farm industry leaders to join us.”

The photo accompanying this story on Moody on the Market is courtesy of Farm News Media.