Aug 13, 2020
Michigan farmworkers file legal challenge to state’s mandatory COVID-19 testing

Citing racial discrimination, farmworkers filed a complaint Aug. 11 in United States District Court for the Western District of Michigan, challenging an Aug. 3 Michigan Department of Health and Human Services (MDHHS) emergency order mandating COVID-19 testing.

According to the Michigan Farm Bureau, Grand Rapids-based law firm Varnum LLP filed the Complaint late Tuesday on behalf of farmworkers from Riveridge Produce in Sparta, and True Blue Processing in Grand Junction.

Plaintiffs seek to overturn the MDHHS mandated testing requirement for certain farm operations, and filed an Emergency Motion seeking a preliminary injunction, while the case is argued in federal court.

According to farmworkers, the emergency motion requires expedited consideration, noting the MDHHS emergency order infringes upon their constitutional rights, including being racially discriminated against Latinos.

“Under the order, plaintiffs are required to submit to mandatory COVID-19 testing no later than August 24, 2020,” plaintiffs stated in the emergency motion. “Without an immediate injunction, plaintiffs, and other similarly situated Michiganders, will face irreparable harm from an unconstitutional and racially discriminatory order.”

According to the filing, the order targets two classes of workers for mandatory testing and subsequent enforcement – migrant and seasonal workers and workers in the meat, poultry, egg processing, and greenhouse industries.

“Time is of the essence. Under the State’s Order, Latino workers must submit to the indignity of mandatory testing by August 24. If they refuse, they jeopardize their employment and housing,” the plaintiffs stated.

“Rather than make this choice, many are expected to seek work in other industries or states. Ironically, if the Order stands, it will have just the opposite effect of the stated intentions; Latino workers and the food supply will be at greater risk.”

In addition to MDHHS Director Robert Gordon, Gov. Gretchen Whitmer and Gary McDowell, director of the Michigan Department of Agriculture and Rural Development, are named in the complaint as defendants for singling out the Latino community, in particular, Latino agricultural workers, for mandatory COVID-19 testing.

“According to Director Gordon, Latinos disproportionately carry the COVID-19 virus, and consequently pose a disproportionate risk for spreading the disease,” the farmworkers stated in their filing. “On this rationale, Director Gordon issued an emergency order targeting Latinos for mandatory COVID-19 testing; something unheard of during this pandemic.”

According to the complaint, migrant/seasonal workers and workers in the meat, poultry and egg processing industries (who are predominantly Latino) must submit to COVID-19 testing or risk losing their jobs and housing.

“Pandemic or not, the State cannot subject one racial class of people to a different set of rules than it applies to others,” plaintiffs stated. “The Equal Protection Clause is at the heart of our Constitution and it remains in force notwithstanding any declared state of emergency. While Governor Whitmer and Director Gordon may be tasked to battle COVID-19, they must do so in a racially neutral manner.”

Within the filing, farmworkers noted that since March 10, 2020, Gov. Whitmer has issued no fewer than 163 separate executive orders in response to COVID-19, including Executive Order 2020-137, which took effect on June 29, 2020.

That executive order, among other things, required farm employers and farmworkers to take proactive, preventive measures to create safer living conditions for migrant workers during the COVID-19 pandemic.

As a result, the EO directs “those who provide housing for Michigan’s migrant agricultural workers must implement plans to prevent exposure to the novel coronavirus that causes COVID-19, care for individuals with COVID-19, and prevent the spread of disease among their workers based on this directive,” farmworkers stated in the filing.

According to the complaint, 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.

“The MDHHS Emergency Order has the potential to completely uproot the lives of many Latino agricultural workers and destroy the agricultural and food processing industry. The Order directly threatens plaintiffs, their livelihoods, their housing arrangements, and leaves them in unnecessary fear.”

As a result, according to farmworkers, many will seriously consider leaving their jobs and the state if they are mandated to test for COVID-19 by the Aug. 24 MDHHS deadline.

“Because workers are required to take a mandatory COVID-19 test in order to remain employed, there is a significant risk that those workers will choose to pursue opportunities in industries without mandatory testing to avoid the risk of being unable to work,” plaintiffs in the complaint stated.

Concerns over adequate access to COVID-19 testing and the issue of false-positive test results were also noted in the legal filing, with plaintiffs saying that one false-positive test could completely turn their lives upside down, as well as nearly wipe out an entire workforce in the agricultural and food processing industry, “… all for a worker who does not have COVID-19.”

Plaintiffs in the complaint requested that the Court, “on an expedited basis, enter judgment in their favor and against Governor Gretchen Whitmer, Director Robert Gordon, and Director Gary McDowell,” as follows:

  • Declaring Gordon’s order violates the Equal Protection Clause of the 14th Amendment of the United States Constitution.
  • Temporarily, preliminarily, and permanently enjoining and restraining Whitmer, Gordon, McDowell and any other person acting under the authority of the governor and directors from enforcing the Order and/or the FAQs as outlined in this Complaint, including but not limited to the Order’s mandate for all covered workers to take a COVID-19 test;
  • Declaring Gordon exceeded the scope of his statutory authority under MCL 333.2253 in issuing the Order, and mandating individuals take medical tests.

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