As most of you know, at the beginning of the November 5th hearing on our Motion for a Preliminary Injunction. the judge announced that he was denying the motion and then went to give a lengthy explanation of why. That was followed by a spirited back and forth between me and the judge about why I thought he was wrong. The discussion didn’t change his mind, but in fairness, the judge had reviewed the voluminous papers submitted by both sides. He showed himself to be a thoughtful person who had obviously spent a great deal of time considering the motion, and he came to a decision, before the hearing, which is perfectly fine since he gave me the opportunity to change it. A lawyer can ask for no more.
The judge was very generous with his time (the hearing lasted almost two hours), and he made some revealing and candid comments which showed his mindset on the case; e.g analogizing non-flu vaccinated people to drunk drivers who think they have a right to drive drunk, and he said he would feel uncomfortable sitting next to an un flu vaccinated person in the class. It’s hard to argue with someone who thinks that, honestly. Legally, he felt he was all but bound to deny the motion because of one of the prior SB 277 court cases which upheld the Legislature’s right to remove the personal belief exemption, despite a constitutionally protected right of privacy. Of course, those cases dealt with vaccine mandates for school children, but he didn’t see any legal or constitutional difference between them and adults. While he agreed that there was not yet a hospital bed shortage in California, he said there could be, and I suppose that was compelling to him, despite the fact that two Alabama federal courts held that speculation about possible hospital bed shortages could not justify the denial of a fundamental right, and so it went for the better part of two hours.
In case any of you want to read the transcript, here is a rough draft.
So what’s next?
Sometime in the near (but unknown) future, the judge is going to issue a substantive opinion in the case. It will be long, and judging from my discussions with him, well thought out by someone who accepts the CDC and infectious disease experts as the final authority on vaccine safety and the need for everyone to get the flu shot. The irony, of course, is that in California, 57% of adults did not take the flu shot last year and in prior years, it was more like in the 60 plus percent who didn’t take it.
We will wait until the decision comes out to decide what to do, but because this is a precedent-setting case, the first case to mandate a statewide vaccine mandate for healthy people for a vaccine not related to the pandemic disease, some kind of appeal will probably be in our team’s short term future.
The appeal/writ probably wouldn’t be decided until early to mid next year, but then if the UC can get away with it this year, you can bet they’ll be another flu mandate next year. And of course, there’s the elephant in the room, being a COVID 19 vaccine mandate around the corner, so I would think the courts will be dealing with these issues for some time.
So where are we right now flu mandate-wise?
You have a few options. 1. don’t show up on campus and fully remote teach, work or study (based on the revised EO). 2. Apply for a medical exemption. I am hearing that exemptions beyond standard ACIP/APA Redbook guideline contraindications and precautions have been occasionally granted, but otherwise it’s going to take a contraindication which is a serious (documented) adverse reaction to a prior flu shot, or 3. submit a request for a religious accommodation. Per my previous posts, they are not limited to Christian Scientists, or 4. work out some private accommodation with your supervisor.
That’s about all for now.
Rick Jaffe, Esq.