12 Months After Epidemic Arrives, State Ag Department Issues COVID Orders

A year after the COVID-19 pandemic took hold, and as a growing share of population has already achieved immunity, the Michigan Department of Agriculture and Rural Development has added itself to the list of state agencies issuing emergency orders aimed at containing the disease.

On March 2, the department announced that the operators of migrant worker housing units must conform to a series of COVID-related mandates. These cover the use of personal protective equipment, minimal spacing of beds and how to deal with suspected infections.

The order is substantially similar to executive orders issued early in 2020 by Gov. Gretchen Whitmer. After the Michigan Supreme Court curtailed the governor’s open-ended authority, the orders were largely reinstated by the state Department of Health and Human Services.

Now some analysts question whether, a full year after Whitmer announced the COVID public health emergency, it still makes sense to impose restrictions on residents and businesses in a way that would otherwise be unlawful. In a recent case involving a ban on the sale of some vaping products, a Michigan court ruled that the state’s claim of an emergency is undermined when it fails to act for months after the exigency arises.

“The legality of the emergency rules is questionable, to say the least,” said Michael Van Beek, director or research at the Mackinac Center for Public Policy. “They contain new mandates that have not been in effect for at least four months. The fact that the department sat on its thumbs over that period suggests that immediate action is not necessary.” He added that the department should follow the normal rule-making process, which calls for public comment and review before an administrative rule goes into effect.

Jim Johnson is the director of environmental stewardship at the Agriculture Department. He said it took a considerable amount of time after the 2020 growing season to determine which priorities were best addressed by public health authorities and which should fall to his department.

While the protective measures enacted last year “were pretty effective,” Johnson said, they “came in the middle of the season.”

The new order was issued with an eye toward giving the operators of migrant housing time to prepare for the 2021 season, he said.

There are more than 800 licensed migrant agricultural housing facilities in Michigan, capable of accommodating nearly 27,000 people.

Johnson said their health is vital to the state’s economy.

“The key here is to respond in an expedient way to protect these workers ... and our food supply,” he said.

Last year, several farm operations sued to block the mandatory COVID testing of farm workers, an imposition they said was not required of multiple other industries.

That challenge was rejected by the courts.

Other challenges to agriculture-related state COVID orders were more successful, however.

Lansing area attorney David Kallman represented a farm market near Charlevoix that declined to enforce mask and gathering limits on its customers. He and his client reached an agreement with local health authorities to operate as they saw fit.

But significant legal questions remain about “how far the power goes,” Kallman said.

“They’re getting away with murder,” he said, “Bureaucrats are ruling the state. Everybody agrees that we need agencies to be able to act quickly in an emergency. But a year later? There has to be some review.”