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October 09, 2020

Breaking News: UC Grants Grace Period on Flu Shot Mandate

By Rick Jaffe, Esq.

Folks, there is a lot going on in our injunction lawsuit regarding the University of California’s (UC) flu mandate which was supposed to go into effect on Nov. 1. Now, apparently the deadline will not be enforced based on representations made by the UC to the judge hearing the case. It’s complicated, so pay close attention.

We filed the permanent injunction action on Aug. 27. On Sept. 17, we filed a motion for a preliminary injunction. There are three things you have to know about Alameda County and state civil court practice. First, you can’t just file a motion in state court. You have to first contact the clerk via email and request a hearing date and a reservation number. The clerk then sends you back a date and a reservation number. So that’s what we did, and due to the urgency of the case, we got an Oct. 14 hearing date and that’s what our preliminary injunction papers show.

The second thing you need to understand is that in Alameda County, all cases start in a general department, department 511. At some unspecified time thereafter, all cases get reassigned to another department/judge for the duration of the case. This part 511 is like a clearinghouse and only deals with motions until a case is reassigned. After we submitted our paper and right as the defendants were finalizing theirs, (Sept. 30), the case was reassigned to another department — 521. Nothing happened for a while. However, earlier this week, the docket noted that department 521 on its own (and over our written request not to) reset the hearing from Oct. 14 to Nov. 12, and yes, that is after the Nov. 1 flu shot deadline. This was probably due to clerical oversight, though no doubt, some of you might be thinking that something else is going on. However, fact number three is that the courts in general and Alameda, in particular, are operating with pandemic induced severe staff reductions, so I am still going with the clerical oversight explanation.

In situations like this, the thing to do is to submit an “ex parte” request to reset the hearing date, and that is what we did Thursday morning, marking it urgent, for whatever good that may do. We are now waiting for the court to either rule on our ex parte request and reset the hearing, or tell us when there will be an argument on our request.

But we’re not done yet!

The UC defense team (which consists of three outside attorneys and two attorneys from the UC general counsel’s office) put in a response to our ex parte request, opposing it. But one of the reasons they said there was no urgent need to move up the hearing date was because the UC was not going to enforce the Nov. 1 deadline. Meaning you do not have to get the flu shot by Nov. 1 according to the UC’s lawyers in this case.

Here is the language from the defendants’ submission to the court:

“UC’s intent is not to ‘fire’ or ‘expel’ any employee or student for not receiving a flu shot between now and when this court hears this matter on November 12” (page 2 lines 2-3 memo).

Defendants’ lead counsel also assured the court that the UC “is committed to working with those individuals who must come to campus to find mutually agreeable accommodation. (Declaration page 3, lns 17-18).

People, representations of counsel to a court is a very serious thing, and if the UC’s own lawyers are saying that you don’t have to comply by Nov. 1, and if you don’t, there will be no adverse consequences, and that the UC is going to work to find a “mutually agreeable accommodation” I think you can rely on these representations to the court.

In the interests of complete transparency, here is our ex parte application and the UC’s response. Judge for yourself:

(And, by the way, there is absolutely no reason why anyone reading this should be in contact with any of the lawyers in this case. They are professionals and are diligently representing their clients, and doing what they sincerely believe is necessary to protect the UC community. I am making a personal request in the strongest possible — non-scatological — terms that anyone considering doing so, DO NOT DO SO. It is critical that opposing counsel be able to communicate with each with mutual respect and trust, and there would be nothing, AND I REPEAT, NOTHING more damaging to our case and our ability to advocate for your interests, than one or more yahoos doing something stupid, so please, please don’t.)

Let’s get back on track because there is a problem.

It might take some time for this new UC largess to trickle-down to the various employee relations departments and the student health services and other departments overseeing the flu mandate policy. They might not get the word of the UC’s extension of the compliance date to Nov. 12 (assuming that date remains).

Therefore, what I suggest is that every single student, staff or faculty member who does not want to take the flu shot, contact HR, employee relations or your supervisor and inform them all of the new UC-announced-to-the-court delay of the order’s implementation. I think this will help facilitate the communication between the main administration which has given these extra 11 days, and the campuses which are probably still in the dark about this grace period.

Since I started writing about this issue (like forever ago or so it seems), I have received many dozens if not several hundred emails and calls from students, employees and faculty objecting to the mandate and wanting to know what they can do to help. So here it is.

Make sure every student, employee and faculty member in every campus and every facility knows about this new extension and make sure that every single HR, employee relations department, all health services at every campus know about it, and insist that they take no action against any of you until the court renders its decision on the preliminary injunction. NO ONE HAS TO TAKE THE FLU SHOT UNTIL THE NOV. 12 court date, because the UC isn’t going to fire or expel anyone and will work with you all!

Just like the UC appears to have reconsidered treating students differently from employees, it seems like Dr. Drake, the powers that be, perhaps through the very able assistance of their inside and outside counsel, recognize your concerns and are willing to allow a court to decide your fate on this important public issue. If so, good on them, and thank you Dr. Drake!

Finally, if there is any push back from HR, employee relations or student health services personnel, drop me an email with the person’s contact information, and I believe the university or its counsel will set it straight (or so I hope and expect, but if not, then our team may get involved).

For now, I am just waiting for the court to rule on our ex parte application. Stay Tuned!

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