So the UC covid vaccine mandate came out, now what? (revised)

So the UC covid vaccine mandate came out, now what? (revised)

Okay, the UC vaccine COVID mandate came out. One commenter put it succinctly: “get vaccinated, get an exemption , or get fired.” That says it all.

Anyone who has been reading my posts knows that I been saying this for weeks and months, that the mandate is going to take effect under emergency use status. It just does not make any sense any other way, i.e. to wait until full approval/licensure.

What is surprising to me is that there are people who are surprised and shocked that this happened. Really? comments to some prior posts had questioned whether we were (then) still in the pandemic. The answer to that is clearer now than it was a month or two ago, and I fear it will become even clearer in the next 60 days.

You can’t expect public health officials to do nothing as the cases ramp up again (except if you live in South Dakota(or North, I forget which ) where the Governor’s operating procedure is to mandate nothing. So, if you feel that strongly about all these issues, that is the place for you. But if you continue to live in California, you can expect the mask requirements to continue, as well as continued pressure on people to get vaccinated, and that would include school children if or once the vaccines are EUA approved for kids, but that will be another battle, I assume, if the EUA based mandate comes.

Will the UC mandated be challenged in Court?

I do not have any firsthand information about that, but secondhand, I have heard that there will be at least two lawsuits. One lawsuit, by the state chapter of a national organization involved in the vaccine (and other) issues. I hear it will be a general lawsuit against the mandate. I heard that a lawyer who was involved in some of the public restaurant restriction cases is involved. The other lawsuit I heard about is a more narrow one and when I think that actually might have a chance, but that only is challenging the mandate for people who have already had the disease.
That is what I have heard anyway, and I would expect the lawsuits to be filed next week, as I believe they have been in the works for some time, but that is just my guess.

What are the odds of success and what you should you do if you work at the UC system and haven’t had COVID?

Although none of you agree with the law, the law is clear that mandatory vaccination is constitutional, starting with Jacobson of course but continuing on, with essentially every single case upholding mandatory vaccination laws. Lower courts are obligated to follow precedent of higher courts, and the precedent, including the two state appellate court decisions on the SB 277 cases (Brown and Love) will be relied upon in these COVID challenges, as will the San Diego federal district court decision upholding SB 277.

Well what about the fact that these vaccines are all “experimental”, doesn’t that matter? How can the government force me to take an experimental product? Does not that violate my rights of informed consent?

Arguably technically, maybe the issue of compelling an EUA product has not been specifically addressed by the courts. But I am aware of at least two cases where the issue was raised, and in both cases, the judges failed to issue preliminary injunctions despite the asserted experimental nature of the vaccine (Judge Lynn Hughes of Houston Federal District Court) and a mask case in New York back in the winter). At least one if not both of the impending UC lawsuits will raise these issues.

Frankly, I am sceptical about these arguments for two basic reasons. First, vaccine mandates are matters of state, not federal law. It is not clear to me constitutionally why a state can not mandate a product which does not have full federal government approval. Ultimately I suspect the courts will say that EUA approval is approval enough in a pandemic.

Second, I think people asserting the argument are misappling the experimental term, or that’s how I think the courts will look at it. (if they were to specifically address the issue and they might not).

I have worked on the issue of access to “experimental” (and the technical term of art in FDA speak is “investigational”) treatments and granting access to say drugs which have passed phase 1 clinical trials (which trials are typically very small and range in numbers of dozens to a hundred or two) and for which the phase 1 data has not been reviewed by the FDA. But that is a universe far, far away from the COVID EUA approved vaccines, for which there were tens of thousand of test subjects in the initial studies, and now the vaccines have been given to what, over 300 million people.

In my view as an FDA lawyer, that is completely different, and while I understand the rhetorical value of calling the COVID vaccines “experimental”, I predict that the courts are not going to see it that way, if they even address the issue. And to that point, just because a party makes a specific argument, like EUA status, doesn’t mean judges are required to address it. Ducking the issue is something judges are very good at doing. So, it wouldn’t shock me if some of the judges hearing the UC cases fail to directly address the EUA status issue and deny the preliminary injunction motion on some other or some general grounds.

Aside from the fact that the law is against the challengers to the mandate, I think there are two other reasons why the district or Superior Court is not going to preliminarily enjoin the UC Covid mandate.

First, there is a religious exemption or actually an accommodation for everyone. I will take some credit for the religious accommodation for UC students. Some of you might recall the initial flu vaccine mandate only had a religious accommodation for employees. After we filed our lawsuit – a primary basis of which was an equal protection claim by students who did not have a religious accommodation – the UC changed its policy and offered a religious accommodation to students. That seems to be what they figured out they had to do in these cases to avoid an actually strong constitutional challenge. And in the Covid mandate, it looks like they have done just that.

Second, – and I caution that many of you won’t like hearing it – it looks like the vaccine is working and doing exactly what they said it was going to do, namely, prevent hospitalizations and deaths (though most of you will deny that is the case).

The simple of it seems to be that most of the hospitalizations now are in the unvaccinated, or so it is being reported (and I know, most of you don’t trust the mainstream media reporting). Hospitalizations and/or deaths almost exclusively in the unvaccinated,seems like a good indication that the vaccines are working. I can assure you that is exactly how the courts are going to see it. I have heard all the arguments and data points which are being used to deny what to judges will be the obvious fact that the vaccine seems to be working, and I can tell you that judges will be extremely reluctant to accept that data for a variety of reasons which I won’t get into here.

A month or two ago, maybe it was not as clear that the vaccinated seem to be escaping the hospitals and death, but now it is becoming clearer. I predict that in a few weeks or a month when the courts hear these preliminary injunction motions, it will be clearer still.

In short, it certainly appears that we are entering a public health pandemic crises of the unvaccinated, and as that view continues to take hold (and despite the fact that most of you will continue to deny it), the legal and social media pressure will increase against those who challenge the existence or character of the crises. At some point, FB and the rest are going to finish off the new top 12 list which has just started circulating in the media, the clearer it becomes that this is an unvaccinated pandemic and especially, if the hospitals start filling up and we start seeing big surges in the death rates.

It is inconceivable to me that any judge is going to stop a mandate for a vaccine during a new outbreak of a pandemic where the vaccine appears to be working and the public health crises appears to be in the unvaccinsate. In such circumstances, I believe all the cries of health freedom fighters for informed consent, my body my choice, vaccine manufacturers have no liability, Fauci is the devil, etc., well, I think all of those cries are going to fall on deaf ears with the judiciary. If you cannot see that, then respectfully, you live in a different universe, or where logic and common sense have different rules.

Something else for you UC employees to consider before you take that principled stand and draw the line in the sand

This is based on information I hear about the work situation at the UC. Many of you have been working remotely and might wish to continue to do so. I have heard indirectly that workers are being strongly encouraged to come back to work at their offices, because work efficiency is down significantly due to working at home.

In general, it is very hard to fire employees at the UC because of unions, collective bargaining and in general what I consider to be the extreme pro-worker bias or fear of workers that UC management has. This Covid mandate presents the perfect excuse for management to fire UC employees without suffering any repercussions from unions or from EEOC-related issues. So before you take that principled stand, you might think long and hard about the fact you might be playing into the hands of management who might be trying to get rid of you and people like you, and now have the perfect opportunity to do so.

In short

The short of it is that I do not think that any judge is going to stop the UC general mandate from going into effect. You will certainly feel good when you hear the news that the lawsuit(s) has (have) been filed, and you will certainly cheer those who filed and support these actions, as you should.

But let me talk now directly to the UC employees and their families, and not to the rest of the opponents to vaccine mandates, because it is you who have skin in the game. My advice to you is that you are going to need a Plan B effective as of the day the mandate goes into effect. And you won’t like it, but Plan B is either get vaccinated, get an exemption, prepare to be fired (or move to South (or North) Dakota and make your own decisions about everything)). Don’t put off thinking about it or working on Plan B until after the judges in these cases issue their rulings.

I wish I had a different opinion, but I don’t. This is how I see it playing out. Someone has to tell you straight up and not just throw back at you the pro personal freedom health mantras and fight cheers.

Rick Jaffe, Esq.

35 thoughts on “So the UC covid vaccine mandate came out, now what? (revised)

  1. Thanks for your update. It’s sickening that with the VAERS information this is forced on employees. Hospitalizations could be down because so many people have had Covid and now have natural immunity. The local health department in my county are seeing a spike of positive infections with people that are vaccinated. The Delta variant is here and the vaccine isn’t necessarily working. It’s sad that the judiciary has become an arm of a communist like regime. Pandemics don’t have a 99% survival rate. My question is how would you recommend tackling vaccine injury if because of this act of forcing people to take this vaccine, employees are injured? What is the UC system’s responsibility for negative health outcomes? Will this become a workers comp issue or will they have to continue your health insurance if you are unable to work?

  2. It is not at all clear that the vaccines are effective against new variants.

    “Data out of Israel reveals some troubling trends involving this heavily vaccinated population. The daily number of SARS-CoV-2 cases in Israel is increasing, having recorded the highest number on Thursday since March. TrialSite delved into a recent data trove made available by the Israeli government and has found that a majority of those now vaccinated actually, according to the numbers, face as much risk testing positive for the Delta-driven SARS-CoV-2 infection as unvaccinated individuals. Meaning, at this point, the vaccine appears to have a negligible effect on an individual as to whether he/she catches the current strain. Moreover, the data indicates that the current vaccines used (Moderna, Pfizer-BioNTech, AstraZeneca) may have a decreasing effect on reduced hospitalizations and death if one does get infected with the Delta variant.”

    1. Yes, but judges and “constitutional attorneys” can’t care less about the truth. They work for the system as much as we would like to think otherwise.

    1. The “law” is broken, has always been and will be broken. The system of justice is written to serve power and to treat those who are not on top as mere slaves, but our rights don’t come from these law makers, they come from God and that’s the ultimate truth.

    2. We can’t just give up and shut up and do as we’re told, just get shot or move. Then we’re all SOL. We need continue to stand up and speak up, there are attorneys who won’t give up

  3. You state: “The simple of it seems to be that most of the hospitalizations now are the unvaccinated. That seems to me a pretty good indication that the vaccines are working, and I can tell you, that is exactly how the courts are going to see it.” The CDC’s own VAERS is now reporting nearly 12,000 DEATHS from these “vaccines”. Clearly they are working – to kill people! This is not acceptable.

    1. Brenda is right! Not sure why Mr J is stating this. Please don’t give up! There are 3 sides always!
      Theirs, ours and Truth!

      1. Why I am saying this is pretty simple. This is what I think is going to happen. The motion for a preliminary injunction will be denied (at least the general lawsuit covering everyone). UC employees are going to have to make a decision, if what I say will happen happens. It’s to the UC employees I’m talking to who have skin in the game.
        I’ve told that that there are lawyers who will be filing but I think UC employees need a plan B. Accept it, don’t accept it. Hand wring, question the messenger, talk about all the reasons among yourself why the vaccine isn’t really working, as you please, but this policy is going to have a real effect on people, and for reasons I stated at the end, I think the administration is only to happy to let UC employees take a principled stand and then terminate them for budgetary reasons, which they couldn’t have done otherwise. Nothing more than that going on.

    2. So, if you apply for a religious exemption and it’s denied, can you still retire or will you be fired if not vaccinated?

      1. fair and good question. It’s a big school system, many separate department and locations which are sort of semi autonomous and different kinds of jobs. I think it will take some time to play out with employees. Maybe even some supervisors are anti vaxers, who knows.
        I think people are going to have some conversation with their supervisors and maybe HR departments. Of course some or many can try for a religious accommodation, but that seems like a PITA. I’m sure if it gets bad, they’ll go to twice weekly covid testing. Supervisors will probably be told who is unvaccinated to ensure their charges are wearing a mask.
        But in the end, the administration is going to take it deadly seriously, compliance wise, especially if it gets bad with the new varient. The point of the post for actual employees (not the FB warriors) is for you employees not to pin all your hopes on some judge stopping this in a couple weeks. You’re asking the right questions and thinking ahead which is a good thing. There’s no rational reason why anyone should be surprised about this or what’s is coming so think and plan.

  4. Tim and Vmax are correct. You can’t just accept media statements, if we do then we’re all SOL Mr Jaffe.

  5. Indeed we moved from California to South Dakota for freedom. Health freedom, personal freedoms all do exist in South Dakota. Kids in school full time, no masks, sports, band, etc from beginning of 2020-2021 school year to the end. No vaxx pressure anywhere that I’ve seen. South Dakota is surprisingly well run – roads, school, community programs, social nets, etc. The people are warm and welcoming.

    1. Good for you! The country has varying degrees of personal freedom on these issues. So my view and advice to people is if they don’t like the restrictions in Cali. stop complaining and move someplace to be with more like-minded people.

      1. “ ….if they don’t like the restrictions in Cali. stop complaining and move someplace to be with more like-minded people.”

        I apologize but that sounds like it’s coming from our fearless Joe leading the nation.

        Just shut up and move then when it changes in that state, move again??
        So we should all really get into a double wide now to keep moving around the country?

        So what about employment? Same thing? Just keep quitting or get used to be fired for not getting the shot??

      2. I had to take a double-take.
        Serious question, all UC folks w vaccine challenges and Dr Stoller, Sutton’s patients and families should just move?

        Good advice.

        1. I haven’t said anything in this post about the medical board cases involving SB 277 medical exemptions. That is a different topic involving different legal issues, but shares the same context.
          As I said in the post, there will be two legal challenges to the UC vaccine mandate. I suppose no one has to do anything until the mandate goes into effect or until employees are contacted by their supervisor about the employees vaccine status. So employees can do nothing and wait and see what happens to those two lawsuits, if there is a decision prior to the employee being contacted by his or her supervisor. That’s another alternative. But then the decision is going to have to be made, if a court doesn’t grant a preliminary injunction. So for sure, wait and do nothing is an option. Lawsuits costs tens of thousands of dollars and practically speaking they are only for organizations to fund, which is what is happening with these two lawsuits.

  6. Can they really use the Jacobsen ruling for this? After all, that was for smallpox which is a really serious disease whereas C19 has a mortality rate comparable to a bad flu. As for the new cases being in the unvaccinated, that is simply not true. A new study in the UK shows about a 50%-50% split and just look at those poor little democrat lawmakers from Texas who were all vaxxed, and 5 came down with Covid.

    1. Respectfully, I don’t think the courts care about what laymen think about how serious or not COVID. Absolutely Jacobson applies. It applies to measles and all kinds of vaccines.

      1. I could think of a whole host of doctors who would line up and back up that with hard data.

        Richard, I like your work but you do have an incredibly negative view on the topic. With the right case and legal team, Jacobsen could get changed in SCOTUS.

          1. “Why the Negativity?” Read the federal district judge’s opinion which came out yesterday and is attached to my most recent post.

            For sure it is only one opinion, by one federal district court, but it lays out the arguments of both sides very clearly, and I believe is the template for how other courts will rule on the issue, except that in other states they will use different cases supporting the post Jacobson analysis. California, via the SB 277 case law is particularly strong for the university’s view.
            So, my “negativity” was just my dispassionate legal analysis of how I thing the California courts will rule on the issue of the general covid mandate for all students and faculty.
            UC employees’ livelihood is at stake. And per my post, I think the UC is looking to do a reduction in workforce due to the inefficiencies of working from home. Someone has to be clear-eyed about what they should not expect from these lawsuits and they need to be ready to make hard decisions or seek a religious accommodation and deal with the testing and masks (and probably everyone is going to have to were them if things get bad.) That’s what’s behind it. I’ll let others and even other lawyers and activists express outrage, shock and disbelief about what the UC is doing and talk about how there will be lawsuits which will vindicate their “constitutional rights.”

  7. it’s been tried for along time and some very good lawyers have been involved. I’m a practical guy and the supreme’s are far far away on a vaccine issue. I know people look to what they have done on religious freedom, but the vaccine issue is different, IMO anyway.
    I don’t think I mentioned who’s getting covid. I don’t think that matters since the testing didn’t necessarily show it stops people from getting the infections. The vaccine showed that it prevented hospitalizations and deaths. I actually thought the data supporting that from the testing was shaky, inadequate and too thin, but now that it’s in the field and the hospitals are reporting their results, seems like that’s what it’s doing, which is a good thing. So if you’re looking at infection rate, I think you’re looking at the wrong parameter and it’s not responsive to my point since I was or tried to keep the focus on hospitalizations and dealths.

  8. I work for UC Davis. Are there any other employees reading this that plan on filing some type of exemption request? What are others planning to do or is it time to update the resume?

    1. I work for UCR and am doing both, waiting for the exemption guidelines to come out while knowing I may need to seek other employment.

    2. I’m also at UCD – the religious exemption process is going through a third party vendor hired by UCOP and that can get denied. Yes, do assume that there will be very harsh critics of your exemption and do have another job lined up. The problem, specifically at UCD, is IT gets to be 100% remote but that’s not being applied across the board. Each VC can choose the fate of their staff. Personally, I’m appalled because UCD speaks of DEI and they seem to forget that religion is part of that.

  9. from my understanding, this shot was designed to prevent serious illness and death and i agree, it “seems” to be doing that. but it’s also the luck of the draw. i also agree we should protect the most vulnerable, but what about those who are less apt to get seriously ill or die – those who are healthy and young and vital and use health care tools other than pharmaceuticals to deal with illness? i see this as brainwash that pharmaceuticals are the only avenue. “one size fits all” is dangerous and “cost/risk vs benefit” “should” hold true with any personal health care choice. i have patients who have died and can’t even walk after getting this shot and not only is there no liability, there seems to be no understanding of what to do to help them.

  10. One the Children’s Defense Website it has an article about Federal Law Prohibiting Mandates for a EUA vaccine. How is UC getting away with this? I am struggling.

    1. there are plenty of opinions out there on both sides of the issue. What I say and what the author of the CHD article said are just opinions. What matters is what the courts say. I pointed out in my article that to that point in time, no court has accepted the “federal laws says you can’t mandate it” argument and denied injunctions in spite of the asserted illegality.
      the IU case I wrote about a couple of days ago specifically addressed the argument and rejected it for the same reason I said in my article; it’s a issue of state versus federal law and EUA status in this case is good enough given how many tens of thousands received it in the trials prior to EUA approval and how many hundreds of millions received it so far post EUA approval. It’s really not all that complicated if you just look at the law and the context and consider we are in a pandemic with the fear that the next big wave is starting. What do you expect the public health authorities to do and what do you expect a bunch of laymen lawyers who wear robes to do? In this case, the argument isn’t even right on the law (but again that’s just my opinion).

      1. I guess I don’t understand why federal law doesn’t supersede state? I have a finance background, not a legal one. Bare with me.

        1. My understanding is that state law can be more restrictive than federal, but not less restrictive. Same with local vs state, and down the line. But correct me if I’m wrong.

  11. Well UC found me and I received an email stating I wasn’t in compliance with the covid-19 vaccine mandate. What are other UC employees doing? I am at UCD.

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