By Andy Kok
As General Counsel of the Michigan Farm Bureau for the past 10 years, I have experienced and worked with our ag community at large on a wide variety of challenges, be they regulatory, political, or simply the product of bad weather.
No matter the challenge, the resilient growers and producers of our state have worked together, running first-class operations that contribute more than $100 billion to Michigan’s economy.
This past year has obviously been dominated by COVID-19, and its wide-spread impact has been felt across our state, country and the world. The ag community has joined together from the earliest days of the pandemic to adopt best practices that protect workers and operations alike. These efforts ensured that our food supply was secure, keeping grocery shelves stocked so that families across the state and country were able to eat meals together while sheltering-in-place.
Notwithstanding the industry’s adoption of these best practices — which are fully consistent with Michigan executive orders and federal guidelines — to protect our agricultural workers, which are more than 90% Latino, the Michigan Department of Health and Human Services recently took it upon themselves to unfairly target and discriminate against workers by forcing COVID-19 testing upon them.
For many years, Michigan Farm Bureau and the ag community have enjoyed a working relationship with MDHHS and other regulatory bodies, with a focus on collaborating to provide safe working environments for workers.
However, when faced with MDHHS’ unconstitutional, paternalistic and misguided order to mandate testing, we heard from many of our members and their workers as they expressed anxiety, fear and outrage over Michigan’s racial targeting to force workers to submit to testing or lose their jobs.
Michigan Farm Bureau and the other commodity groups responded, and assisted members and farmworkers to organize a lawsuit against the MDHHS emergency order for the same reasons that the state wrongly claimed in its attempt to justify this mandatory testing: to protect our Latino workers, to protect their civil rights and to protect them from government-sanctioned discrimination, indignity and unprecedented governmental overreach.
Beyond the violation of core constitutional rights, there are far-reaching consequences for agricultural workers as the MDHHS’ order jeopardizes their very livelihood. If a worker exercises their constitutional right to decline testing, they are out of a job.
Even if new workers agree to testing, they must wait for a negative test to begin work which could be many days as testing delays continue to grow due to the testing demand created by this order. Bear in mind, this is all happening during harvest, which is prime earning season for many farmworkers.
The state-directed taking of workers’ income is devastating to the immediate worker and family needs but also impairs the workers’ paths forward and continues the racial disparity the state uses to defend their discriminatory action.
Unfortunately, we learned today the Federal 6th Circuit Court of Appeals has upheld the lower court’s denial of the request for an injunction staying the Order issued by MDHHS on August 3, requiring mandatory testing of several categories of agricultural workers. Thus the Order remains in effect. The court did not find that the State’s Order was discriminatory against Latinos. Despite the this ruling, we uphold the workers’ fundamental rights to make their own medical decisions.