Aug 10, 2020
Employers, employees consider challenge to Michigan COVID-19 testing mandate

An Aug. 3 Michigan Department of Health and Human Services (MDHHS) Emergency Order mandating COVID-19 testing by farm employers with 20 or more farmworkers has not been well-received – by employees or their employers.

According to Michigan Farm Bureau Assistant General Counsel Allison Eicher, the state’s agricultural industry is currently working with Grand Rapids-based Varnum LLP contemplating a legal challenge to the MDHHS mandate, citing a violation of their employee’s civil rights.

“This is clearly a violation of farmworkers’ civil rights — no other group in the state is subject to mandatory testing for work except for nursing home workers and even then, there’s a significant difference,” Eicher explained.

“If the nursing home worker chooses not to be tested, they still get to go to work, they just can’t interact with patients. If a migrant worker 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.”

Varnum attorney Ronald DeWaard, a partner in the law firm, said there’s really 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.

“The order clearly targets the Latino community and the state has been really clear with that in press releases,” DeWaard said. “Perhaps well-intentioned, in the aspect that they’re trying to help the Latino community, but misguided in that they’ve singled out this minority class.”

According to Eicher, producers and farmworkers have also questioned the unrealistic time-table for implementation, which requires farm employers to submit a “Compliance Plan,” by Monday, Aug. 10, with all mandated testing to be completed by Aug. 24.

If the interested parties pursue legal action, Eicher expects it would be in the form of an injunction filed sometime tjisweek in Western District Federal court.

Eicher says farm employers will still be obligated to file the required Compliance Plan by next Monday.

“Unfortunately, the agricultural industry can’t realistically file a legal challenge by Monday,” Eicher explained. “At this point, the goal is to get something filed next week so that we can get on the docket for a judge to hear arguments for an injunction, before the August 24 deadline for mandated testing to be completed.”

In the effort to claim bragging rights as the “national leader” in COVID protections of migrant and ag workers, Eicher says the MDHHS is ignoring two basic realities – farmer compliance efforts above and beyond previously issued Executive Orders, and the fact that most farm operations have family members directly involved with migrant farmworkers on a daily basis.

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

“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,” Eicher continued.

U.S. District Court Judge Paul Maloney, who presided over previous legal challenges in Western District Federal Court, has asked the Michigan Supreme Court to determine whether Gov. Whitmer has the authority to issue Executive Orders, but the Michigan Supreme Court won’t hear oral arguments until Sept. 2.

Even though the MDHHS order is an Emergency Order – issued by MDHHS Director Robert Gordon – not an Executive Order issued by Gov. Whitmer, Eicher says the MDHHS mandate relies on the authority of previously-issued Emergency Orders.

“It’s a distinction without a difference,” Eicher suggested. “They (MDHHS) cite 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.”

Michigan Farm Bureau

The order clearly targets the Latino community and the state has been really clear with that in press releases. Perhaps well-intentioned, in the aspect that they’re trying to help the Latino community, but misguided in that they’ve singled out this minority class,” said Varnum LLP attorney Ronald DeWaard. Photo: Michigan Farm Bureau


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