Late yesterday afternoon, the Michigan Department of Health and Human Services issued an Emergency Order restricting gathering sizes, requiring face coverings in public spaces and places limitations on bars and other venues. Under MCL 333.2253, if the MDHHS director determines that control of an epidemic is necessary to protect the public health, the director by emergency order may prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws. The order is in effect until October 30.
The top aspects of the order include:
Requirements to wear masks at indoor and outdoor gatherings: The order requires individuals to wear masks when in gatherings, defined as any occurrence where persons from multiple households are present in a shared space in a group of two or more, and requires businesses and government offices to enforce those requirements for gatherings on their premises. The order also requires the wearing of masks at schools, except for in Michigan Economic Recovery Council Region 6.
Limitations on the size of gatherings: The order reinstates limitations on gathering sizes that mirror the requirements that Governor Whitmer had previously put in place. These include indoor gatherings of more than 10 and up to 500 people occurring at a non-residential venue are permitted with limits.
Limitations on certain establishments: Although the order does not close bars, it requires them to close indoor common areas where people can congregate, dance or otherwise mingle. Indoor gatherings are prohibited anywhere alcoholic beverages are sold except for table services where parties are separated from one another by at least six feet.
Athletes training or competing in an organized sport must wear a facial covering, except when swimming, or consistently maintain six feet of social distance.
The Michigan Legislature is looking to return to session late this week or early next week as Republican leadership hurriedly compiles bills that codify certain executive orders issued by Gov. Whitmer during the COVID-19 pandemic. Among the top priorities are protecting workers receiving unemployment insurance benefits, ensuring COVID-19 testing procedures and allowing local governments to meet remotely for the time being.
As everyone probably knows, the Michigan Supreme Court ruled that the Governor’s Executive Orders on COVID -19 have been unconstitutional after the original declaration of emergency. The court ruled 7-0 that the Governor needed to consult and work with the Legislature after the 28 days based on the 1976 Emergency Management Act that governs the emergency declaration. The Governor was following the 1945 Emergency Powers of Governors Act, to continue issuing declarations of emergency after the initial 28 days and this was ruled unconstitutional in a 4-3 ruling. This has created quite a stir trying to figure out when the Supreme Court ruling takes place. On Friday the Governor referenced a 21 day period that the COVID-19 declarations would remain in effect and many measures will continue under “alternative sources of authority.” This has been challenged by many saying that everything ended when the Supreme Court made their ruling. This is probably true but we still have to be vigilant and follow the MIOSHA guidelines that are in place to protect our employees and customers from harm. This means still supplying PPE and having measures in place to lessen the chance of transmission of the virus. Local Health Departments will step in and put rules in place for their county, but there are also questions on the legality.
Remember, the absence of executive orders does not mean the absence of COVID-19. The CDC guidelines are still in effect: Prepare your Small Business and Employees for the Effects of COVID-19. You can still enforce mask use and social distancing on private property, if you wish. Use an abundance of caution and common sense during these uncertain times. We want all businesses to stay open, safe, and COVID free. Everyone has spent a considerable amount of time and money to make sure their business is safe and is able to follow the guidelines that were in the Executive Orders. Even though the Executive Orders are not enforceable, many of the same guidelines are in the MIOSHA rules to keep your employees safe. Follow this link for OSHA rules: Guidance on Preparing Workplaces for COVID-19
On another note, MDARD has sent out a letter to plant groups saying they are asking to increase the plant inspection fees. I will forward the letter as soon as I receive a copy.
We have received notice from Varney Law that our lawsuit has not and will not be successful. Here is their report:
“The Sixth Circuit denied our emergency request for an injunction of the mandatory testing Emergency Order finding we are unlikely to succeed on appeal because the State’s Order was not issued with a discriminatory purpose. While the Court granted our motion to expedite the appeal, continuing the challenge in light of the Court’s findings would be futile. We remain outraged by the State’s actions and the Court’s unwillingness to uphold agricultural workers’ constitutional rights. Thank you all for your support of the Emergency Order challenge, and we hope that you and your workers manage through this.
We knew this was a long shot but we had to stand up for the industry. As I have stated before, no one has been successful in suing the Governor during the COVID crisis. Hopefully things will get back to normal soon and we won’t be still testing in the spring. Keep up the great work protecting your employees and customers. Please reach out to Cindy or me with any questions you may have as we try to work this out together.
Monday was the deadline for having testing done on your workers if you have 20 or more working in one location. Hopefully everyone was able to get the testing done with results on a timely basis.
Judge Paul Maloney of the United States District Court of Michigan, Western District, denied the request for an injunction to prevent the enforcement of the Michigan Department of Health and Human Services (MDHHS) public health order that required testing of migrant farmworkers, so it has gone into effect and everyone needs to do the testing. An appeal has been filed to hopefully stop this from going too much longer but it will be an uphill battle all the way. No judge has ruled against the Governor yet and this may not play out as we had hoped. Stay tuned.
We have received word from the attorney representing us that the judge has denied our request for a Temporary Restraining Order. We received an update from Varnum Law on the actions of the Court on Friday and wanted to pass this information along. Their message is as follows:
“The Court denied the Request for Temporary Restraining Order so the State’s Emergency Order remains in effect. The decision is disappointing in that the Court did not find the Order to be racially based. The State has until Tuesday to file a brief and then we will file reply brief due Thursday. We believe the Court did not fully consider facts and law presented and will work toward a brief that refocuses the Court’s consideration. We have also heard that Farmworker Legal Services and Michigan Immigrant Rights Center will file briefs to support the State, and Migrant Legal Aid plans to file a brief to support workers and employers. Again, we are disappointed with the initial decision and continue to have an uphill battle in challenging a COVID order. -Kim Clarke”
You should not wait for August 24th to test! Make sure you have made plans to have it done before the deadline. Keep up the good work, continue to keep your employees and customers safe during these tough times.
The USDA has finally added nursery crops and cut flowers to the CFAP payments as we sent out a notice yesterday. The percentages are not very high, 13.45-15.55% but we have at least been recognized for the losses incurred and for the importance of the industry. MGGC has continued to push for inclusion in the CFAP by joining other industry leaders in calls and letters outlining the size and importance of our industry. Thank you to all who have shared their loss data to show how hard the growers were hit with the quick onset of the government shutdown of business. The USDA has extended the deadline to September 11 for applications for relief. For more information, go to https://www.farmers.gov/cfap/nursery
MGGC is moving forward, with 171 other industry leaders, in a lawsuit against the Governor, MDHHS, and MDARD for the civil rights violations they have committed with the order for testing of all workers in the ag industries. The MGGC Board of Directors felt that an industry united would have a better chance for success, so we joined to present a larger voice. We have asked to an emergency motion for relief from the burdensome testing requirements placed on our industry. Hopefully we will receive the answer soon. Attached are FAQ’s that I have received from the group. I will continue to monitor the situation and report to you as needed.
Today (August 11) the USDA announced expanded eligibility for the Coronavirus Food Assistance Program (CFAP). The program, funded through the CARES Act and the Commodity Credit Corporation, provides direct assistance payments to eligible commodities for which significant losses occurred due to pandemic-related market disruption.Nursery and floriculture cropsare now eligible for relief. USDA also extended the application deadline to September 11. Nursery and Floriculture specific details are at https://www.farmers.gov/cfap/nursery.
CFAP Payments for Nursery Crops and Cut Flowers
CFAP payments for nursery crops and cut flowers will be based on a percentage of the producer’s wholesale value of inventory. Payments will be the sum of CARES Act payments and CCC payments as follows:
CARES Act Payments: For nursery crop and cut flower inventory that was shipped but subsequently spoiled or is unpaid due to loss of marketing channels between January 15, 2020, and April 15, 2020, the wholesale value of the inventory that was shipped that spoiled or is unpaid, multiplied by 15.55 percent; and
CCC Payments: For nursery crop and cut flower inventory that did not leave the farm between January 15, 2020, and April 15, 2020, due to a complete loss of marketing channel, the wholesale value of the inventory ready for sale that did not leave the farm by April 15, 2020, and that will not be sold due to lack of markets, multiplied by 13.45 percent.
Nursery crop and cut flower inventory that may be sold after April 15, 2020, is not eligible for CFAP.
Additional CFAP Information
Farm Service Agency staff at local USDA Service Centers will work with producers to file CFAP applications.
Visit farmers.gov/cfap for additional information on the Coronavirus Food Assistance Program, other eligible commodities, CFAP eligibility, payment limitations and structure, and how to apply.
Last week Thursday, the board met to discuss the opportunity to join with Michigan Farm Bureau and several Michigan Commodity organizations in a lawsuit against the State of Michigan, the Governor and Michigan Department of Health and Human Services for their Emergency order on employee testing in the agriculture setting. It was decided that MGGC would join the lawsuit financially and as a plaintiff in the case. The case will be entered under the Equal Protection Claus of the Constitution as they are singling out farmworkers who have a high percentage of Latino’s. The farmworkers have a just cause and are asking for action to be taken. There are over 100 farmworkers ready to file a complaint to the State Civil Rights Commission. Ours is the only industry targeted with this action even though there has not been a significant outbreak in the industry lately. Greenhouse growers have followed the CDC guidelines and made sure our workers have been protected.
This does not mean you don’t have to have your plan ready August 10, 2020 (today) or complete the testing requirements by August 24. This will take time and hopefully we will be able to stop this overreach by the state. If you have any questions, please reach out to Cindy at 517-367-2033, firstname.lastname@example.org or me at 231-301-4888, email@example.com .
I have been notified that all the funding needed is in place, and we will move forward with the suit. I will keep you up to date as I hear more.
MDHHS Order on COVID19 Testing
By August 10 (TODAy), all agricultural and greenhouse operations are expected to have a plan in place to complete the testing, if they have 20 or more employees on one shift. We recommend that all greenhouses go ahead and develop this plan now, it does not have to be implemented until you are at the 20 employee criteria.
The suggested template for your plan is available for download here:
The MGGC board has decided that with all of the uncertainty in the world today, to cancel the annual meeting we had scheduled for October 19 in Traverse City. With the recent Executive Order issued by Governor Whitmer not allowing more than 10 people to meet at one time in the northern part of the state, we decided to cancel now and work towards a great event next year. We will let everyone know when the date and place are as soon as it is set up.
Today we are making sure you have all of the information you need to follow the latest Order affecting the greenhouse industry. We have included the state’s template that helps you have your plan ready and in your file by August 10 as required by the Order. We have also included a list of available testing labs and a link to MDARD’s form to file for assistance with the testing. If you have any needs that are not met by the links we have provided, please call Cindy at 517-367-2033 or me at 231-301-4888 and we will try to help you find what you need to be able to be prepared by the August 24th testing deadline. I will continue to work towards a more sensible way to keep our employees and families protected and keep you up to date on any changes that happen.
Stay well, Goeff
MDHHS Order on COVID19 Testing
By August 10, all agricultural and greenhouse operations are expected to have a plan in place to complete the testing, if they have 20 or more employees on one shift. We recommend that all greenhouses go ahead and develop this plan now, it does not have to be implemented until you are at the 20 employee criteria.
3. Utilize local Testing Facilities – This would utilize the employees exisiting insurance, as most are covering the cost of the test. The employee would need to report back to you with the results of the testing.
There really is not much help in the websites listed and I am trying to find a point person for questions in either MDHHS or MDARD. Neither seems to know how to answer the questions we have. I am still asking who from the industry helped them come up with their recommendations in the order. Please continue to send me your questions and suggestions that I can offer to the point person, when I get a contact.