I would like to be able to tell you all precisely what the status is on the UC Flu mandate issue, but I can’t.
Here is what I know and can say for sure.
- Under the two executive orders, compliance with the mandate was required by November 1st, which is tomorrow
- The judge in the injunction action in putting the hearing off from October 22nd to November 4th told the UC not to take any action against any UC member for not complying with the mandate.
- Initially, the UC and its campuses appeared to ignore the judge’s order, or at least not publicize the delay of enforcement. From what I can tell, they are still not acknowledging the order or the lawsuit, probably in the hopes that the preliminary injunction will be denied and the case goes away.
- Recently, UC employees have been informed in a few places that the deadline for denial of campus access has been moved back to November 17 (or the 16 possibly)
- HOWEVER, THE UC IS STILL ADVISING EVERYONE THAT THE PAPERWORK FOR OBTAINING A MEDICAL EXEMPTION OR RELIGIOUS ACCOMMODATION IS TODAY OR TOMORROW, AND NOT NOVEMBER 16TH OR THE 17TH.
and therein lies the dilemma; what should people do who do not want to take the shot and have to be on campus?
Each member of the community has to make his/her own decision. I have received emails from people who say they filed the paperwork for a ME or religious accommodation. Some are pending, some have been granted. Sometime principles have to take a back seat to reality and practicalities, and I think that is what is motivating those who have submitted their paperwork.
Whether any individual UC member files or doesn’t file a religious exemption shouldn’t affect the outcome of our case, and even if it were to, ultimately, everyone has to do what’s best for him or herself. So, if you’re on the fence about this, i.e. whether to file, today is the day to decide.
At this point here are to most likely scenarios (not in any order of likelihood).
worst case: the preliminary injunction motion is denied and the judge says nothing about deadlines. I don’t think that is likely. Even if the judge denies the motion, I have to believe that he will set a date for compliance and we will certainly ask that the order include a new filing date for ME’s and religious accommodations. That would seem only fair.
best case: the preliminary injunction is granted and all deadlines and the mandate is overturned. But candidly, even if that happens, the case isn’t over. The UC will appeal for sure and even seek a stay. I don’t think the judge will grant a stay, and based on the record, I would be hopeful that the appellate court would not either.
The judge could also throw a curveball, like ordering an evidentiary hearing at some date in the future and formally issuing a short preliminary injunction.
To me, the denial of an application for a religious accommodation because of a deadline which is the subject of a preliminary injunction motion to be decided three days after the deadline would be arbitrary and capricious and could be overturned for employees under EEOC law and procedures. I don’t know a similiar legal administrative vehicle for students, and as I said, I would think the judge if he denies the motion, would reset all the dates to give the community time to comply.
So there you have it, are you unconfused now? (ok me neither)
My only advice is to make a conscious decision today because according to the UC, you won’t be able to do so tomorrow. Welcome to Hardball.
Rick Jaffe, Esq.