Farmers Struggle with COVID-19 Testing Deadline
"We were obviously disappointed with the ruling that came out on Friday."
Farmers say they’re still struggling with an Executive Order that requires mandatory COVID-19 testing of farm workers. A class-action lawsuit was filed to try to stop it, but a Court of Appeals judge has now denied the farmers request.
Farmers say they’re not ready to give up the fight.
A federal judge ruled late Friday – denying a request from farm workers and their employers to stop a mandatory COVID-19 testing requirement.
Rob Anderson is the Government Relations Manager with the Michigan Farm Bureau. “We heard loud and clear from farmers and from workers that they were concerned that this was targeting the Latino community. Our concern has always been that we believe that this unfairly targets workers in the Latino community who work in the agriculture industry.”
“By spelling out the specific industries that it did, and knowing that well over 90% of the workers in those areas are Latino and Hispanic, that seems very clear to us that it’s targeting one specific group,” Anderson goes on to say the Ag community supports the state’s efforts to fight COVID and protect residents, but “it’s another thing all together to say we’re going to target a group of workers who are in a specific racial class and say ‘you have to undergo a COVID test to work and earn a paycheck.’”
Dave Smeltzer with West Wind Orchards in Manistee County agrees. “We’re singling out this community. With the assumption that they are carriers. And that is an awful broad brush.”
For now, the order is still in effect, meaning 75,000 farm workers are required to be tested by an August 24th deadline. But that seems to be logistically impossible. Smeltzer says “We’ve gone the entire summer. And never an issue. Where was the testing requirement back in May or June or July? All of the sudden now we have to do it?”
The Michigan Farm Bureau says the requirement hurts agricultural workers and threatens their livelihoods. “Some of our farms that have to comply are in rural areas. They may be hours away from a testing facility.”
The order requires a baseline test for all farm employees – even including drivers and office staff. Anderson says, “The first test is, are you an industry targeted for mandatory testing? If you are, then all your employees need to be tested regardless of where they work on the farm or what capacity.”
The order also requires separate housing for all newly arriving workers, then a baseline test and a second COVID-19 test 10-14 days later. “They (workers) will come. Then we have to test them. Then we have to wait. We’re still in communication about how that all is going to happen. We could have an answer as early as 3-4 days, could be as late as possibly two weeks. And timing – fruit needs to be picked on a timing schedule, not on a waiting-for-results schedule.”
Anderson says some farms are working to schedule testing with the state, which gives them leeway in the August 24 deadline. But he and Smeltzer both say it’s not clear from the order if farms have to halt operation while waiting for the test results. Under the Order, “Employers must exclude workers with COVID-19 from work until they have met all return to work criteria established by the CDC.”
Smeltzer says he’s also worried that there’s nothing keeping his workers from going somewhere else. “They could say, we could pick apples in the state of Washington, we could pick apples in Ohio, we could pick apples in Pennsylvania, in New York.”
While the recent court ruling is a setback for farmers in the class-action suit, the case may not be over yet, according to Anderson. “To force them to get a test in order to work, unlike any other worker, we just think that’s fundamentally flawed. And the court needs to ask the Department of Health to approach this in a way that’s more racially neutral. Again if the plaintiffs plan to move forward I think we’ll continue to support the case.”
Also under the Order:
Workers who decline testing may not conduct in-person work and, if living in a licensed migrant housing camp, must be housed in isolation housing consistent with social distancing and infection prevention measures.
Employers and housing operators are responsible for arranging testing for workers and residents as described in this order, including specimen collection from workers, laboratory processing of the specimens, and ensuring that results are reported to state and local public health authorities.
You can read the entire order here.