Farmworkers and their employers filed an appeal on Aug. 25, seeking to overturn a decision by U.S. District Judge Paul Maloney of the Western District of Michigan last week to deny an injunction against Michigan Department of Health and Human Services mandated COVID-19 testing order, according to Varnum LLP, the law firm handling the case.
“We are appealing the district court’s decision to the Sixth Circuit, where we will ask for an ‘Injunction Pending Appeal,’ to stay MDHHS’ emergency order pending a full briefing on why the MDHHS emergency order unconstitutionally discriminates against Latinos,” said Varnum’s lead attorney on the case, Ronald G. DeWaard.
Maloney ruled the emergency order’s COVID-19 testing mandate of farmworkers on operations with 20 or more employees 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."
According to Michigan Farm Bureau Assistant General Counsel Allison Eicher, the appeal is still relevant and necessary, noting the MDHHS emergency order and testing mandate does not have an expiration date.
“So farmworkers arriving later this month or into September for Michigan’s fall apple harvest, for example, would still be required to comply with the MDHHS testing mandate or face not being able to work until they can provide test results,” Eicher said.
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 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 said 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 a number of instances where farmworkers are making the decision that they’re not going to submit to the testing, and they have already left since the ruling was announced to seek work in other industries or other states where this testing mandate isn’t in place.”
According to Michigan Blueberry Commission Executive Director Kevin Robson, predictions of farmworkers walking off the job due to the MDHHS testing mandate are, unfortunately, becoming a reality.
“I have already received phone calls from growers — one reporting their entire harvest crew left the day the judge’s ruling was announced, and another one that had 26 farmworkers leave the same day,” Robson said.
In a briefing response to Maloney on Aug. 20, farmworker 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."