On Sept. 9, the U.S. District Court for the Western District of Michigan approved dismissal of a lawsuit that sought to halt a state emergency order requiring COVID-19 testing for agricultural and food processing employees.
The dismissal on the part of the plaintiffs — two farms, True Blue Berry Management and Smeltzer Orchards, along with six farmworkers — means Michigan’s emergency order and its testing requirements will stay in place.
The Michigan Department of Health and Human Services issued the order on Aug. 3 in response to COVID-19 outbreaks on farms and in food processing plants. The order requires migrant housing camp operators to provide one-time baseline testing of all residents ages 18 and over; testing of all new residents within 48 hours of arrival, with separate housing for newly arriving residents for 14 days and a second test 10–14 days after arrival; and testing of any resident with symptoms or exposure. Employers of migrant or seasonal workers, meat, poultry and egg processing facilities, and greenhouses with more than 20 employees on-site at a time, are subject to similar requirements.
With backing from Michigan Farm Bureau, the plaintiffs filed a complaint Aug. 12, arguing that the state’s emergency order infringed on migrant workers’ civil rights. The farm bureau estimated that as many as 75,000 Latino farmworkers will need to be tested under the health department mandate.
On Aug. 21, U.S. District Court Judge Paul Maloney denied the plaintiffs’ request for an injunction against the order. The plaintiffs appealed. On Aug. 27, a coalition of worker advocates, community organizations, labor unions and public health experts, including the Michigan Immigrant Rights Center and United Farm Workers of America, filed an amicus brief with the court supporting the health department order.
On Sept. 2, the U.S. Sixth Circuit Court of Appeals also ruled against the plaintiffs’ preliminary injunction request, stating that the plaintiffs were unlikely to succeed with the lawsuit because the state’s order was not issued with a discriminatory purpose, Varnum attorney Kimberly A. Clarke said in a statement.
“While the court granted our motion to expedite the appeal, continuing the challenge in light of the court’s findings would be futile,” Clarke said. “We remain outraged by the state’s actions and the court’s unwillingness to uphold agricultural workers’ constitutional rights.”
Diana Marin, the Michigan Immigrant Rights Center’s supervising attorney, said in a statement: “The voluntary dismissal of the case by plaintiffs demonstrates their equal protections claims were baseless and would not prevail. MIRC will continue to monitor the order’s implementation and will work with our community partners to undo the harm the agricultural industry-backed lawsuit has caused, specifically the spread of misinformation and fear regarding the order’s requirements.”
Help for employers
According to the health department, employers and housing operators have several options for completing the required testing, including contracting with a medical provider, occupational health provider or laboratory to arrange a testing program; requesting state assistance to conduct testing; or utilizing testing resources in the broader community. The state will provide testing support for employers or housing operators as its capacity allows and will assist facilities in identifying other sources of testing capacity as needed.
The health department released a guidance document that provides step-by-step information on how employers can complete testing and highlights resources such as grant funding and insurance coverage through Medicaid that can provide financial support. COVID-positive and exposed residents are required to isolate until meeting return-to-work criteria from the federal Centers for Disease Control and Prevention. The health department is partnering with community action agencies in impacted communities to provide food, housing and economic support for workers who lose income due to testing, according to the department.
For up-to-date information, visit Michigan.gov/Coronavirus.
—by Matt Milkovich