Farm owners, migrant advocates clash over COVID-19 order

Farm workers and immigrant advocates are defending a protective health order enacted this month in Michigan, saying it's necessary to prevent field laborers from contracting COVID-19.

In response, industry groups backed by the Michigan Farm Bureau sued in federal court, alleging the order discriminated against Latinos by mandating more testing than in other industries. Employers were expected to comply with the order by this past Monday.

The controversy comes as the state recorded four outbreaks in the last two weeks at farms in Michigan.

Advocates say farm workers deserve paid sick leave, proper protective equipment and hazard pay.

The Michigan Immigrant Rights Center, Sugar Law Center for Economic and Social Justice and the United Farm Workers filed a legal brief in support of the public health order on Aug. 20. The following day, Judge Paul Maloney of the U.S. District Court for the Western District of Michigan denied the industry request for an emergency injunction that would have blocked the state order.

"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."

Diana Marin, an attorney at the Michigan Immigrant Rights Center, said the industry pushback is meritless and dangerous for farm workers, Michigan's food systems and the general public.

"The lawsuit seeks to stop the implementation of an order that will help flatten the curve and reduce coronavirus infections, not just in the agricultural sector, but throughout Michigan," Marin said. "This emergency health order, it is imperative to the health of Michigan farm workers, an essential workforce that unlike many of us have not been able to stay home. They have been doing in-person work in Michigan's fields, packing warehouses and food processing plants, as the pandemic has raged on."

The industry plaintiffs appealed the ruling Monday to the U.S. 6th Circuit Court of Appeals in Cincinnati.

The agricultural employees say they are discouraged from taking time off, are not being tested routinely, are not being paid during quarantine, and did not receive an increase or "hazard pay" as essential workers.

Industry officials "are also causing confusion and spreading misinformation about what the order requires," Marin said. "Because this case ultimately decides whether farm workers in the essential workforce, who live in dense housing and are unable to social distance at work, are entitled to a work environment where they will not be infected with the coronavirus, and want to know if their coworkers have been."

That's why the Michigan Immigrant Rights Center along with a coalition filed a friend of the court brief with the federal appeals court, she said.

Allison Eicher, assistant general counsel for the Michigan Farm Bureau, said the state order, issued by the Michigan Department of Health and Human Services, is overly broad, noting the testing mandate does not have an expiration date.

“So farm workers 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 farm workers were required to be tested by Monday under the MDHHS mandate, according to Rob Anderson manager of government relations for the Michigan Farm Bureau.

Worker advocates said during a virtual press conference Thursday that testing should have been regulated sooner and is not enough while many risk their lives during the pandemic.

Teresa Romero, president of the United Farm Workers union, said agricultural workers are particularly vulnerable to the virus because they often live in cramped, overcrowded and unsanitary conditions.

"They are contracting COVID-19 in alarming numbers in many parts of our country, and farm worker families are suffering ...," Romero said. "Most farm workers have received no benefits from federal relief bills, including additional employment and checks from the government."

Congress and the U.S. Department of Agriculture provided agricultural districts with $19 billion to aid farmers in April, but the funding did not include any requirements to protect farm workers or comprehensive paid sick leave.

"The UFW helped convince California and Washington state to require the employers to provide two weeks paid sick leave for farm and food workers who test positive or are exposed to those who do," Romero said. "Farm workers are essential workers, but they don't enjoy the same benefits or rights as other workers. Free routine testing and housing is vital."

Workers have not walked off the job because of fear of retaliation and some are seeking employment only at plants that offer routine testing.

"Simply, the agriculture business continues to put profits over people," Marin said.

Adrian Vazquez-Alatorre, executive director of El Concilio, a Kalamazoo nonprofit that supports Latino families, said a handful of workers have died due to the virus while working in Michigan fields.

"Yes, a large majority of the workforce is from Latino community, but we want everybody safe," he said. "We want to make sure that their civil rights are upheld and we hold people accountable for their actions. As a migrant worker myself, and my family, we were socialized, we were intimidated. There is a fear of speaking up. And so, we want to make sure that we stand with other workers that we listen to the workers and that we amplify their voices."

srahal@detroitnews.com

Twitter: @SarahRahal_