An emergency order requiring COVID-19 testing of farmworkers in Michigan was upheld Friday by a federal judge, who said the requirement showed no "discriminatory intent."

The plaintiffs, six Latino farmworkers, True Blue Berry Management and Smeltzer Orchards, alleged in a complaint filed this month that the order issued by the Michigan Department of Health and Human Services discriminated against Latinos. Farmworkers must undergo COVID-19 testing by Monday.

Denying their motion for a preliminary injunction, U.S. District Judge Paul Maloney of the Western District of Michigan cited an amicus brief submitted by Constitutional law professor Richard Primus at the University of Michigan Law School, who stated the emergency order "is facially neutral with respect to race, and its administration does not involve the disparate treatment of any individual based on racial classification."

"As Professor Primus explains in his amicus brief, even if the Emergency Order is race-conscious, a facially neutral government program designed to protect and improve the working and living conditions of a group is not reviewed under strict scrutiny," Maloney said.

"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," the judge said. 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."

He also said that just because "there may well be" places other than migrant housing camps where the risks are higher, "that fact does not undermine the rational basis for this Emergency Order."

The Michigan Farm Bureau said in a release issued after the ruling that "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 Monday, Aug. 24."

“Obviously farmworkers and their employers are disappointed with the judge’s ruling,” Michigan Farm Bureau Manager of Government Relations Rob Anderson said. “The MDHHS emergency order has the potential to completely uproot the lives of many Latino agricultural workers and threatens their livelihoods.”

In the last two days, there's been  flurry of activity in the case. The judge also agreed Friday to accept the amicus brief from Primus, but declined to consider an amicus brief filed by farmworker groups. (More on that below from our story posted earlier.)

As the Aug. 24 deadline for testing approached, the two sides filed papers seeking to influence Maloney's decision.

The complaint, originally filed Aug. 11 but amended two days later, claims the state’s order violates the U.S. Constitution’s Equal Protection Clause by discriminating against Latinos. The judge denied a request for a temporary restraining order on Aug. 14, teeing up the plaintiffs’ request for an injunction to stop enforcement of the order.

The order has “a discriminatory purpose in mandating that Latino agricultural workers take COVID-19 tests, while not requiring other similarly situated individuals and businesses to do so,” the complaint says.

In an amicus brief filed Thursday, the Michigan Immigrant Rights Center (MIRC), Sugar Law Center for Economic and Social Justice, United Farm Workers, and the United Farm Workers Foundation led dozens of local and national individuals and groups in opposing an injunction request seeking to stop the required testing.

On Friday, Maloney said he would not consider their amicus brief, saying "the majority of the proposed brief sets forth facts concerning the health, safety and welfare of agricultural workers. Assuming for the sake of argument only that such advocacy is proper in an amicus curiae brief, the facts presented would be of little assistance to the court." 

Nevertheless, in their brief, the groups said “the Michigan Farm Bureau and agricultural business interests are the driving force behind this case,” citing a Bloomberg Law report published before the lawsuit was filed that reported “attorneys for the Michigan Farm Bureau …pushed to enlist 200 farming operations to join and fund” the litigation.

Michigan Farm Bureau has made no secret of its support. In an Aug. 13 press release, the group's assistant general counsel, Allison Eicher, said “the order clearly targets the Latino community, and the state has been really clear that they’ve singled out this minority class. No other group in the state is subject to mandatory testing for work except for nursing home workers.”

"Michigan Farm Bureau, as the state of Michigan’s largest agriculture advocacy organization, was called upon by growers and workers across the state to help organize an industry conversation about this issue," Eicher told Agri-Pulse. "This effort is being supported by contributions from individual growers and processors who are concerned this order unfairly targets Latino workers and violates their constitutional rights.”

An attachment filed with the complaint lists more than 100 farm operations and groups supporting the lawsuit. They “are willing to be plaintiffs in this litigation, but due to time and logistical constraints, they are not named at this time,” according to the attachment.

The amicus brief says that “requiring agricultural employers to assume the responsibility of testing farmworkers and residents in migrant housing is not racist or discriminatory. It is a necessary response to the imbalance of power that exists between farmworkers and their employers.”

“Throughout their argument, plaintiffs make an unspoken assumption: employers should be permitted to continue thwarting the law, while farmworkers continually put their health at risk,” the brief says. “The Emergency Order seeks to instead hold agricultural employers and migrant housing providers accountable for the health and safety of workers and residents.”

The workers named as plaintiffs in the lawsuit say they feel the order discriminates against them.

Susan Castillo, who works at Riveridge Produce, said, “I am deeply offended that the state of Michigan has issued an emergency order that singles out and targets Latinos, both on an industry-wide basis and in my workplace. For example, non-employees, who are also primarily non-Latino, regularly interact with the Latino workers at my workplace and will not be required to be tested under the emergency order.”

In a response filed Friday to the farmworker groups’ brief, the plaintiffs said the application for amicus status should be denied.

“Given the time-sensitive nature of plaintiffs' motion for an emergency preliminary injunction, amicus briefing is inappropriate,” they said, as it “will only delay” ruling on the plaintiffs’ motion.

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“The state has ordered all mandatory testing to be completed by Aug. 24, 2020,” they said. “There is simply no time to incorporate these groups into this expedited briefing schedule.”

In addition to farmworkers, the state’s emergency order includes testing requirements for meat, poultry and egg processing facilities, and greenhouses with over 20 employees on-site.

"The men and women who work in our fields and food processing plants are at particular risk for COVID-19, and they need and deserve protection,” MDHHS Director Gordon said in issuing the order Aug, 3. The "order will help to reduce the spread of COVID in communities across Michigan and reduce the pandemic’s disparate impact on Latinos.”

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This story was updated to include reaction from the Michigan Farm Bureau.