Aug 23, 2020
Michigan testing mandate stands as judge rules against farmworkers

U.S. District Judge Paul Maloney of the Western District of Michigan issued a ruling late Friday, Aug. 21, denying a request from farmworkers and their employers for an injunction against an emergency order issued by the Michigan Department of Health and Human Services on Aug. 3.

According to a report from Michigan Farm News, Maloney ruled the testing mandate of farmworkers on operations with 20 or more employees, called for in the MDHHS order was not discriminatory against Latino farmworkers.

“The Court and the parties generally agree that the Emergency Order affects primarily Latinos, as Latino workers predominate the agricultural labor market and also migrant housing camps,” Maloney wrote. “But statements by MDHHS Director Robert Gordon cited by the plaintiffs “simply acknowledge this fact. This fact would tend to demonstrate a disparate impact, but it does not require the inference of discriminatory intent.”

As a result of Maloney’s ruling, the MDHHS order is still in effect, meaning an estimated 75,000 Latino farmworkers are required to be tested by Monday, Aug. 24, under the MDHHS mandate, according to Michigan Farm Bureau Manager of Government Relations, Rob Anderson.

“Obviously farmworkers and their employers are disappointed with the judge’s ruling,” Anderson said.

Legal opinions aside, Anderson expects concerns from Latino farmworkers that the MDHHS emergency order testing mandate has unfairly targeted and labeled them as high-risk for COVID-19, with no scientific basis to justify that claim, will continue.

“The MDHHS emergency order has the potential to completely uproot the lives of many Latino agricultural workers and it directly threatens their livelihoods, their housing arrangements, and leaves them in fear about how they’ll provide for their families,” Anderson said.

“We’re also hearing, anecdotally, that farmworkers are making the decision that they’re not going to submit to the testing, and that they will seek work in other industries or other states where this testing mandate isn’t in place to keep their jobs,” he continued.

In a briefing response to Maloney on Thursday, plaintiffs in the case said race was a “motivating factor in the MDHHS order.

“The state set a policy of using race as a factor for responding to COVID-19, it crafted an order designed to target Latinos, and then the Director himself acknowledged exactly that,” the plaintiffs wrote. “The State may have broad powers to battle the pandemic but using racial classifications to dictate mandatory testing is not one of them.”

Whether plaintiffs will appeal Maloney’s decision to the Sixth Circuit Court of Appeals to seek an emergency appeal, remains to be seen.

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