Earlier this month, the Michigan Department of Health and Human Services (DHHS) issued an emergency order imposing requirements to test agricultural workers for COVID-19. The DHHS order applies to migrant-housing operators, agricultural employers and agricultural employees. Those requirements went into effect on August 24, 2020, after a federal court rejected attempts to block them.
The plaintiffs, several Latino seasonal agricultural workers and two orchards that employ seasonal agricultural workers, sued the state in federal court claiming that the DHHS order racially discriminates against Latinos, in violation of the federal and Michigan constitutions. The workers and employers asked the federal court to prevent the DHHS order from going into effect because, they claimed, they were likely to prevail on their constitutional claims, and if the order went into effect, they would suffer irreparable harm.
The federal court disagreed. The court noted that DHHS and the plaintiffs agreed that the order disproportionately affects Latinos as they “predominate the agricultural labor market and also migrant housing camps.” But the court concluded that the DHHS order was not motivated by an intent to discriminate against Latinos. Because the court concluded that the DHHS order likely met all the other requirements imposed by the federal and state constitutions, the federal court refused to enjoin the COVID-19 testing requirements.
This decision is a further indication that courts are generally unwilling to restrict Governor Gretchen Whitmer’s and her executive agencies’ authority to undertake emergency measures to protect the public health during the COVID-19 public-health emergency. Indeed, only one challenge to the Governor’s executive authority, a suit brought to reopen gyms, has succeeded in federal court, and that decision was quickly overturned on appeal.
Most importantly, the court’s decision means that migrant housing operators, agricultural employers and agricultural employees must implement the DHHS order’s requirements to test agricultural workers to prevent the spread of COVID-19. The full text of the DHHS order can be found here.
If you have any questions regarding the court’s decision and what this means for your business and employees, please contact Matthew Nelson, Brandon Cory or a member of Warner’s Labor and Employment Practice Group.
