As anyone affiliated with the UC knows, the University announced that it will issue its final covid mandate policy on July 15th. Different segments of the community have received different communications depending on what school you are your children are affiliated with and whether you are a student or employee.
I have received many requests for advice, but I tell everyone the same thing. First, I cannot give individual members of the UC advice or even those members who ask me. More importantly, I do not think anybody can give specific advice until we actually see the final policy in writing. The reason is there are still big unanswered questions.
The biggest unanswered question to me is whether or not there will be a mandate in force prior to full biological licensure of a covid vaccine. My understanding is that in the original statement by the UC indicated that the mandate would not go it into effect until there was full licensure/approval. Then there were some statements indicating that no, emergency use authorization approval is sufficient and mandates will go into effect based on EUA status.
As most of you know, the manufacturers of both of the mRNA vaccines have applied for a full biological license. I have speculated in the past that I would expect the FDA to act relatively quickly on these applications, but there really is no way of telling.
Practically speaking, I think it would be overly chaotic and hence unrealistic to condition a flu mandate based on full licensure because of the uncertainty of when that will be and the fact that there may not be simultaneous approval for the two vaccines applicants. And what about the J&J recipients? Are they going to be barred from the University or forced to take one of the approved vaccines? I’m not seeing that one bit.
Given how strongly the UC administration and the UC infectious disease community feel about the Covid vaccine, and its apparent success in the U.S. – and let us not forget this Delta variation which is scaring the beJesus out of the public health authorities (or if you are more cynical, being used as a PR pretext to force vaccination mandates), it seems like a reasonable guess that the UC final policy will be that the vaccine will be mandated based on the current emergency use authorization status. And that avoids the whole mRNA vs the EUA J&J vaccine issue, as well the complete uncertainty about when the FDA will approve/license the vaccines.
From reports from employees, it looks like they already have until July 15 to either prove they had the vaccine or seek some kind of exemption. The mandate for students, once it comes, should only go in effect for the fall semester. Though, the UC administration is forcefully communicating with students to clarify their vaccine status and strongly encourages everyone to get the vaccine.
What about the exemptions?
First, you can forget about the medical exemption, as it will be based on the ACIP guidelines, essentially meaning anaphylaxis or a severe reaction to a prior vaccine. Also, I think some places might require that the adverse reaction be worked up by a health care professional or at least documented in a medical chart.
In terms of a religious exemption or accommodation, it won’t be the miracle that you are expecting, even if you get it. The UC is not going to let un-covid vaccinated people walk around the campus like in the old days. There will be a mask requirement and an onerous testing requirement, more than you think is reasonable, the point of which is to dissuade people from requesting religious exemptions.
Enforcement might be an issue of course. I don’t know how they can enforce the mask requirement for the unvaccinated, but they can surely enforce the testing requirement by requiring the filing of the periodic testing (and I don’t think there is a HIPAA issue), and the automatic suspension of key cards if the tests are not timely filed, if they go that far. But one way or the other, you won’t like the conditions of the religious exemption, which is as I stated, the point.
There is still a legal question as to whether a state government agency (and the UC is a state agency under the law) can mandate a EUA only authorized product. As I explained in my last post, the courts have not yet seriously address the issue specifically, but have upheld mandates for emergency use products. I suppose the good news is that so far, no California court has addressed the issue. But as indicated a Texas federal judge has, and a New York federal judge did not find the experimental nature of emergency use authorization sufficiently persuasive to stop and EUA only approved PCR test.
While I think there will be several challenges to the UC policy after it comes out on July 15, it is an uphill battle, to say the least. Therefore if you are a student or an employee, you should should certainly hope for the best but prepare for the worst. And that means even if you do get a religious exemption, you are going to have to comply with the UC’s terms about it. I do not see how the courts are going to second-guess a state university that is trying to protect its community and accommodate religious exemptees. Like it or not, agree with it or not, masks are accepted by the public health officials and the infectious disease experts as being effective, regardless of what other minority opinions there are from physicians in fields not directly related to public health or infectious disease. I don’t see how a judge is going to overturn a University’s imposition of a mask requirement as a condition for a religious exemption. Bottom line, I think the mask requirement is going to stick, and I feel the same about the testing requirement for the unvaccinated, regardless of the EUA status of the test. So, in my view, you are going to have to just live with these conditions of a religious exemption, if that’s the way it shakes out on the 15th.
One thing I am completely clear about and will confidently predict is that until this pandemic is over worldwide and is in the history books, things are not going to be as they were before the pandemic for the people who chose not to take the covid vaccine, and I don’t think any of the anticipated lawsuits is going to change that basic fact. Therefore, you should be realistic about the possible benefits of these lawsuits (including the one I may file if there is sufficient community support).
We are still looking for additional support for Kelly Sutton’s Medical Board fight.
Here is the link to the gogetfunding campaign.
Rick Jaffe, Esq.