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Author: Richard Jaffe

Status Report on the Ken Stoller Medical Board Case (and Other Similiar Cases)

Status Report on the Ken Stoller Medical Board Case (and Other Similiar Cases)

Some have asked for an update on Ken Stoller’s medical board case, and the other board cases I am working on, so here it is.

The Closing Arguments by the parties were submitted to the ALJ on November 9th.

I won’t bore you all with our closing which gets into the weeds of the ten cases, but for grins, here is the introduction. I decided to start by abstracting the whole case and our position.

“To begin, let’s present the core facts of the case in the abstract, like a conceptual symbolic logic problem, devoid of the messy vaccine issues.

A state has a statute which sets-up the physician as a gatekeeper for something people can or cannot do based on a statutorily created physician opinion letter. The statute (or an amendment to it) specifically says that physicians can use “x” factor in making the judgement call as to whether to issue the letter.

There is a federally created general guideline on the subject of the state’s law, which is recognized by a majority of physicians in the country. However, it is much more restrictive than the (amended) state law. The federal guideline consists of a simple chart listing the few factors that do or could justify the physician letter. Unfortunately, x factor is not on the chart. Therefore, using x factor is consistent with the state’s statute, but inconsistent with the national standard.

Some additional abstract facts: Some state statutes (say New Jersey, for example) specifically say that physicians can only write the letter if the national standards are met, and there are no exceptions. But alas, our state is not one of them, perhaps because the state legislature was not intelligent enough to know that it could have followed the New Jersey model and explicitly limited physician letter writing to the national standard which does not include x factor. Or, perhaps there was some political reason requiring the legislature to allow physicians to use x factor to get the bill passed, even though x is not on the national chart. But ultimately it does not matter. As inconsistent as it may be with the national standard, x factor is in the state statute for physician letter writing.

What is the state medical board’s position about this inconsistency, and what guidance does the board give to help physicians to understand the new amended law? None, because it is not what it does, or so it says.  The board leaves it up to each physician to decide how he/she will exercise discretion and use or not use x factor.

A legal fact: Our state has a minority view defense to charges of negligence, gross negligence and incompetence.

When the (amended) law was being debated, the bill’s author emphatically stated to the lower legislative house that even an extreme x factor could be the basis of a physician exercising his discretion and write the letter. He even said that he has been in contact with the medical board and that he received the board’s assurance that using x factor will not cause problems for physicians with the board, which he said should reassure the members of the legislature whom he was trying to convince to pass his bill.

Sitting next to the bill’s author when he made those statements is the physician who is now testifying against the physician for using x factor. He testifies at the disciplinary hearing that there is a national standard, and physicians are not permitted to use x factor in making the letter writing determination because to do so would be a violation of the standard of care. He says that it doesn’t matter what the law actually says, because there is a nationally recognized community standard (i.e. standard of care), and every physician in the state has to follow the national guidelines which do not include x factor, let alone extreme x factor. He insists that only community standards apply, and no physician can rely on the fact that x factor is listed in the law, because there is a national community standard and that standard applies to all physicians in the state. Why? Because there is a community standard, and all physicians are required . . . and on and on it goes into an infinite regressive circular loop.

When the board’s expert is asked why the bill’s author said extreme x would support a letter, he said he didn’t know, but he does say that what the author really meant was that the physician had the power (or technical legal ability) to write the letter, but it would still be a violation of the standard of care, which the board could prosecute and Voila, here he is testifying against the doctor.

Viewed thusly in the abstract, this is not a close case.”

Basically, our view is that SB 277 created a statutory standard of care and allowed physicians to write ME’s beyond ACIP guidelines, and the standards used by Ken and other like-minded physicians are within a minority view standard of care permissible under California law (Bus. and Prof. Code 2234.1).

The judge has 30 days (from November 9th) to submit a proposed decision to the Board. As of mid last week, she had not submitted the decision. The decision gets reviewed by the Board and specifically a panel and eventually it gets to the entire board. The next scheduled full board meeting is in February, but it’s possible the board could act before that date.

The basic choices the members of the board has it to approve the ALJ’s proposed decision or non-adopt it. If the latter, the board members review the record and the parties are give a chance to argue (live or more like on papers) for or against the proposed decision.

Any sanction against Ken’s license means the revocation of all of his ME’s (theoretically at least, but because the change from SB 276 to SB 714 removed the filing of ME’s with the CDPH, it is possible that some of his ME’s could continue to be in force because some might slip in between the cracks, as it were. But for planning/awareness purposes, if you have an ME from him, and his license is sanctioned in this case, you should assume your child’s exemption will be revoked by the school, especially since schools have been rejecting ME’s since the passage of SB 276/714. Of course, some of this does not apply right now  due to the pandemic and lock-downs, but eventually things will get back to normal, so even if your child is not affected right now, it’s something to keep in mind.

Beyond Ken’s case, I represent four other NorCal physicians under scrutiny by the Board. There is a formal accusation against one of them, but no date has been set yet for a hearing, probably because of the pandemic. Two other physicians have had their Board interviews and accusations against them will be filed in the next month or three I suspect. One physician is awaiting the Board interview.  Bottom line for those parents who have ME’s from NorCal docs: I don’t don’t think ME’s written by any of these docs will be revoked during the 2020-2021 school year, just because of timing issues, unless one or more of these cases are settled, and for most of them, that’s not likely to happen in the next few months.

Bottom line: We are waiting for the ALJ’s/Board’s decision in the Stoller case. The ALJ’s decision will be publicly available 30 days after she submits it to the Board, whether or not the Board issues its final decision by that time.

This is the first litigated case on these broader than ACIP ME’s, since all previously charged physicians had signed consent agreement agreeing to be sanctioned (and that would be none of my clients). I have a pretty good idea of the Board’s view on the issues, but no idea how the ALJ will rule. I think we made our case, but you never know. Fingers crossed.

Rick Jaffe, Esq.

 

 

The Supreme Court Does an About Face on Church/Synagogue Restrictions

The Supreme Court Does an About Face on Church/Synagogue Restrictions

As you all know by now, on Wednesday night the Supreme Court stayed enforcement of NY Governor Cuomo’s restrictions on religious gatherings, in Roman Catholic Diocese of Brooklyn, New York v Andrew Cuomo. It is is just an temporary stay pending appeal, so technically it is not necessarily the Court’s final word on the matter, but nonetheless it is extremely significant as a predictor of future cases. It also may have significance for those interested in the mandatory vaccine issue.

But first and foremost, the decision demonstrates  the first principle of Constitutional interpretation, namely, the Constitution means what five justices say it means at any given time, and that can change radically in a short period of time, because of circumstance, the most important one being the make-up of the Court.

In the Summer of 2020, the Supreme Court twice upheld restrictions on religious services based on deference to the government’s police power.  The vote was 5-4. The Chief Justice joined the liberals to form the majority. Uber liberal Justice Ginsberg is gone, replaced by a highly religious arch conservative. To the surprise of few, the Court’s decision Wednesday night went the other way, with the same vote tally. The new religious conservative justice created the new majority, with Chief Justice Roberts, who was previously the swing vote in the cases in the summer (and many other cases), is now the dissenter-in-chief, and likely will be so in many future decisions.  That all is obvious, but there is more to the decision

One of the main mantras of the vaccine concerned is the misplaced reliance by the state and federal courts on Jacobson, which has achieved landmark case status for the proposition that the state can impose vaccine mandates over the privacy and bodily integrity rights of individuals, and in particular children attending school.  What the courts failed to acknowledge, according to the vaccine concerned, is that the regulation challenged in Jacobson imposed a $5 fine ($140 in today’s money) for non compliance.  So it really was not a true mandate, but rather a reasonable choice. But the courts relying on Jacobson either forgot about that or did not see its importance. That is until Justice Gorsuch’s concurring opinion in this case.  Much to chagrin of Chief Justice Roberts, Justice Gorsuch engaged in a extensive analysis of Jacobson, and was quite dismissive. Here are his words which will warm the cockles of the hearts of all vaccine concerned:

“Why have some mistaken the Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic. In the end, I can only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crises. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do.” (page 5-6 of the his concurrence).

Boy, can this guy write! But alas, he also seemed a little dismissive of unstated, penumbra privacy/substantive due process rights underlying Reverend Jacobson’s position. But then, arch conservatives like Gorsuch are not big on judges creating rights, (I think mostly because of the abortion issue).

Justice Gorsuch’s frustration with the court’s prior two  decisions upholding religious gatherings restrictions, which was voiced publicly albeit perhaps indirectly by Justice Alito in a speech to the Federalist Society, is best summed up by how Justice Gorsuch ended his concurrence:

“It is time – past time- to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”

Here is the decision with all the concurrences and dissents. You should read it, especially Justice Gorsuch’s opinion because it draws a line in the sand, and he is telling us all how he and the four other conservative judges (aka the majority) will be looking at religious restrictions and probably other restrictions during the pandemic, and every other case that comes before the Supreme Court.

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Rick Jaffe, Esq.

 

 

 

 

 

UC Flu Shot Mandate Lawsuit Status Report and the Hearing Transcript

UC Flu Shot Mandate Lawsuit Status Report and the Hearing Transcript

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.

ROUGH Trancript Kiel v Regents 11-5-20

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.

 

 

 

 

 

What’s Next in the UC Flu Mandate Situation: The Contours of a Federally Required Religious Accommodation to a Flu Mandate

What’s Next in the UC Flu Mandate Situation: The Contours of a Federally Required Religious Accommodation to a Flu Mandate

Now that our Preliminary Injunction motion to stop the UC’s Flu Mandate has been denied, some have asked what’s next.

Some have asked about an appeal. Given how long it takes to get an appellate court to review a denial of preliminary injunction (technically it’s not an appeal but a writ of mandate), an appeal/writ, even if successful, would not provide a timely remedy to those of you who have to be on campus now or soon. So, because I’m a practical guy, and the UC community needs a practical solution like now, I’m not going to even think about a writ right now.

Technically, the lawsuit is going to continue, but there wouldn’t be a trial until after the flu season, so for the same reason as above, let’s put aside consideration of continuing litigating the case for now because it doesn’t provide an immediate solution.

What about a medical exemption?

The UC will be using the list of contraindication and precautions under the ACIP (Advisory Committee on Immunization Practices) as the criteria for granting them. They are very restrictive basically, a (documented) severe allergic reaction after a previous flu shot, or if you currently have a moderate or severe acute illness, and that’s it.  Having an autoimmune condition or a family history of something is not going to do it.

If you have some kind of disability, that might do it, but that won’t affect many people.

So it comes down to a religious accommodation:

Let’s get into the weeds of what that is, because it is broader than many of you might think:

Let’s go right to the source which is the EEOC which enforces Title VII which deals with employment discrimination:

Here is part of an EEOC formal discussion letter:  It is long, but it will give you a good background on how federal law looks at the issues involving religious accommodations. You should read this very carefully (and especially the highlighted portions):

“13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

The Title VII principles referenced in these questions and answers would govern the general questions you have raised regarding whether     Title VII requires hospitals to accommodate their employees’ religious objections to receiving influenza and other vaccines, and under what circumstances such accommodation would not be required. Facts relevant to undue hardship in this context would presumably include, among other things, the assessment of the public risk posed at a particular time, the availability of effective alternative means of infection control, and potentially the number of employees who actually request an accommodation.

Scope of Covered Religious Beliefs and Employer Inquiries

In your letter, you inquired about what religious beliefs potentially are entitled to accommodation under Title VII, provided that a reasonable accommodation could be provided without undue hardship. The Commission has addressed these matters extensively in the Guidelines on Discrimination Because of Religion, 29 C.F.R. Part 1605, http://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-2011-title29-vol4-part1605.xml, and the Compliance Manual, Section 12: Religious Discrimination (2008), religion.pdf . The Commission and courts have consistently found that Title VII defines religion very broadly to include not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it. Commission Guidelines, 29 C.F.R. § 1605.1 (“The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.”); Compliance Manual at 6-12; Welsh v. United States, 398 U.S. 333, 343 (1970) (petitioner’s beliefs were religious in nature although the church to which he belonged did not teach those beliefs); accord Africa v. Commonwealth of Pa., 662 F.2d 1025, 1032-33 (3d Cir.1981); Bushouse v. Local Union 2209, United Auto., Aerospace & Agric. Implement Workers of Am., 164 F. Supp. 2d 1066, 1076 n.15 (N.D. Ind. 2001) (“Title VII’s intention is to provide protection and accommodation for a broad spectrum of religious practices and belief not merely those beliefs based upon organized or recognized teachings of a particular sect”).

The Compliance Manual further explains that Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs. Religious beliefs include theistic beliefs (i.e. those that include a belief in God) as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Although courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held. Rather, religion typically concerns “ultimate ideas” about “life, purpose, and death.” Social, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII.

Therefore, whether a practice is religious depends on the employee’s motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that “religious” beliefs would be held to incorporate secular philosophical opposition to vaccination.

You also asked what steps, if any, hospitals may take to scrutinize a requesting employee’s beliefs to determine whether the employee’s asserted need for accommodation is based on a sincerely held religious belief, and whether hospitals require the requestor to have the support of a religious official. These issues are addressed in great detail, with accompanying examples, in the Compliance Manual, which in pertinent part explains:

Because the definition of religion is broad and protects beliefs and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief. If, however, an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.

*    *    *

When an employer requests additional information, employees should provide information that addresses the employer’s reasonable doubts. That information need not, however, take any specific form. For example, written materials or the employee’s own first-hand explanation may be sufficient to alleviate the employer’s doubts about the sincerity or religious nature of the employee’s professed belief such that third-party verification is unnecessary. Further, since idiosyncratic beliefs can be sincerely held and religious, even when third-party verification is needed, it does not have to come from a church official or member, but rather could be provided by others who are aware of the employee’s religious practice or belief.

An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation. By the same token, employers who unreasonably request unnecessary or excessive corroborating evidence risk being held liable for denying a reasonable accommodation request, and having their actions challenged as retaliatory or as part of a pattern of harassment.

It also is important to remember that even if an employer concludes that an individual’s professed belief is sincerely held and religious, it is only required to grant those requests for accommodation that do not pose an undue hardship on the conduct of its business.

Compliance Manual at pages 12-14, 48-51 (footnotes omitted). See, e.g., Bushouse, 164 F. Supp. 2d 1066, 1078 & n.18 (court held that union’s refusal to provide accommodation unless employee produced independent corroboration that his accommodation request was motivated by a sincerely held religious belief did not violate Title VII’s religious accommodation provision, but cautioned that the holding was limited to “the facts and circumstances of the present case” and that “the inquiry [into sincerity] and scope of that inquiry will necessarily vary based upon the individual requesting corroboration and the facts and circumstances of the request”).

You further inquired whether hospitals may refuse to accommodate an employee’s religious objections to immunizations if, in addition to presenting religious objections to immunizations, the employee submits non-religious, anti-vaccine information. A related matter you have raised is whether a healthcare employee’s receipt of vaccines in the past, in and of itself, relieves an employer of the obligation to accommodate the employee’s present request for religious accommodation. As the Commission has explained:

Like the “religious” nature of a belief or practice, the “sincerity” of an employee’s stated religious belief is usually not in dispute. Nevertheless, there are some circumstances in which an employer may assert as a defense that it was not required to provide accommodation because the employee’s asserted religious belief was not sincerely held. Factors that – either alone or in combination – might undermine an employee’s assertion that he sincerely holds the religious belief at issue include: whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons. However, none of these factors is dispositive. For example, although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time, and therefore an employee’s newly adopted or inconsistently observed religious practice may nevertheless be sincerely held. An employer also should not assume that an employee is insincere simply because some of his or her practices deviate from the commonly followed tenets of his or her religion.

Compliance Manual at 13-14 (footnotes omitted). See, e.g., EEOC v. Union Independiente De La Autoridad De Acueductos, 279 F.3d 49, 56-57 & n.8 (1st Cir. 2002) (evidence that Seventh-day Adventist employee had acted in ways inconsistent with the tenets of his religion, for example that he worked five days a week rather than the required six, had lied on an employment application, and took an oath before a notary upon becoming a public employee, can be relevant to the evaluation of sincerity but is not dispositive; the fact that the alleged conflict between plaintiff’s beliefs and union membership kept changing might call into question the sincerity of the beliefs or “might simply reflect an evolution in plaintiff’s religious views toward a more steadfast opposition to union membership”); Hansard v. Johns-Manville Prods. Corp., 1973 WL 129 (E.D. Tex. Feb. 16, 1973) (employee’s contention that he objected to Sunday work for religious reasons was undermined by his very recent history of Sunday work); see also Hussein v. Waldorf-Astoria, 134 F. Supp. 2d 591 (S.D.N.Y. 2001) (employer had a good faith basis to doubt sincerity of employee’s professed religious need to wear a beard because he had not worn a beard at any time in his fourteen years of employment, had never mentioned his religious beliefs to anyone at the hotel, and simply showed up for work one night and asked for an on-the-spot exception to the no-beard policy), aff’d, 2002 WL 390437 (2d Cir. Mar. 13, 2002) (unpublished); EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1997) (en banc) (Jewish employee proved her request for leave to observe Yom Kippur was based on a sincerely held religious belief even though she had never in her prior eight-year tenure sought leave from work for a religious observance, and conceded that she generally was not a very religious person; the evidence showed that certain events in her life, including the birth of her son and the death of her father, had strengthened her religious beliefs over the years); Cooper v. Oak Rubber Co., 15 F.3d 1375 (6th Cir. 1994) (that employee had worked the Friday night shift at plant for approximately seven months after her baptism did not establish that she did not hold sincere religious belief against working on Saturdays, considering that 17 months intervened before employee was next required to work on Saturday, and employee’s undisputed testimony was that her faith and commitment to her religion grew during this time); EEOC v. IBP, Inc., 824 F. Supp. 147 (C.D. Ill. 1993) (Seventh-day Adventist employee’s previous absence of faith and subsequent loss of faith did not prove that his religious beliefs were insincere at the time that he refused to work on the Sabbath).

Measures Required in Lieu of Vaccination

You also specifically asked whether an employer that grants a religious accommodation excusing a healthcare worker from a mandatory vaccination may impose additional infection control practices on the worker as a result, such as wearing a mask. While an employer covered by Title VII may not impose such practices for discriminatory or retaliatory reasons, it may do so for legitimate, non-discriminatory and non-retaliatory reasons. Whether the employer’s motivation for imposing additional infection control measures was discriminatory or retaliatory would turn on the facts of a given case.

As you may be aware, specific information is available from the Centers for Disease Control (CDC), at http://www.cdc.gov/flu/healthcareworkers.htm, addressing healthcare workers and vaccination, and the government’s recommendations for particular types of workplaces and other public settings are modified depending upon the assessment of the public risk at a given time. The U.S. Department of Health and Human Services (HHS) has also been actively considering the issue of vaccination for healthcare workers, and what measures to recommend for implementation in hospitals and other settings, and information about these deliberations is available at http://www.hhs.gov/ash/initiatives/hai/tier2_flu.html and related pages on the HHS website. Additional government information and advice for employers, updated on a continuing basis given the assessment of risk at a given time, can be obtained at www.pandemicflu.gov. ” (emphasis added)

END OF QUOTE

here is the link to the entire letter.

https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-250

The above should give you all how the EEOC looks at these things, and how the federal agency will review the UC’s conduct if they deny your request for a religious accommodation.

The important point is that you don’t have to be part of an organized religion to have the type of belief which qualifies for a religious accommodation.  One thing I am clear about from the FAQ is that you can’t get a religious accommodation because you’re an anti-vaxxer or vaccine concerned.

I don’t think there is a time limit or deadline for applying for a religious accommodation. I have heard that some UC web sites no longer show the religious accommodation form. If so, then request the form from your HR department, and do so in writing. If the response is that it is no longer available, then that might be enough to file a complaint with EEOC, (and I will explain that in another post).

So, right now the only practical way to avoid the UC flu mandate is to seek religious accommodation. The good news is that based on the September 29th revised executive order, it is available to students as well as employees and faculty. (And they obviously did that because of our injunction lawsuit and the preliminary injunction motion, and that shows as big and powerful as the UC is, they can be moved.)

So fill out the request and send it in. If the form is not up on your campus’s web site, ask HR, your supervisor (or both)  or dean of students, or anyone else you can think of for the form. If they tell you it’s not available anymore, and that the time to submit the form has passed, get ready to file a complaint with EEOC (for employees or faculty). For denials to students, we’re probably talking about round two of litigation, this time maybe a class action.

The fight continues, but now, it will require your direct involvement and interaction with the administration.

Rick Jaffe, Esq.

UC Flu Mandate Injunction Motion DENIED

UC Flu Mandate Injunction Motion DENIED

We just finished a two-hour oral argument. At the beginning, the judge said his tentative decision was to deny the motion. Basically, between the CDC’s recommendation that everyone should get the flu shot and all the infectious disease experts the UC had, he was convinced that the UC could constitutionally require the UC community to get the shot. He had obviously thought about this a great deal, but in cases like this, once a judge makes up his mind, there is usually no changing it.

So what should do now if you don’t still don’t want to take the shot? The only thing I can suggest is to file a request for a religious accommdation. In a later post, I’ll detail the fedreal EEOC criteria for obtaining one, but it’s not strictly an organized religious thing. I don’t think federal law permits restricting the time to file a request for a religious exemption. Their are religious inqusition courts staffed by UC HTR personnel in place, Maybe it’s time to increase their work load.

If you are an employee and your request is denied, then your remedy is to file a complaint with the EEOC. I’ll post later the process. There are no filing fees and employees can file their own complaints without an attorney. Each complaint will be investigated and will require UC HR and legal to be involved.  That is Plan B for employees. That remedy is not available to students. The only remedy students would have be be some kind of further lawsuit.

Dissappointing but not entirely surprising giving the pandemic.

Rick Jaffe, Esq.

 

 

Must See TV! UC Flu Mandate Preliminary Injunction Video Hearing today at 2:30 PM Pacific Time:

Must See TV! UC Flu Mandate Preliminary Injunction Video Hearing today at 2:30 PM Pacific Time:

Finally, the day of our hearing has arrived. It’s at 2:30 PM Pacific time, today November 5, 2020.

Here is the link to watch or listen to. Most likely, the judge will not announce his decision today, but will take it under advisement, but you never know, he could say something about how he is going to rule, so literally stay tuned.

http://www.alameda.courts.ca.gov/Pages.aspx/Live-Stream-521

good thoughts, well-wishes and prayers grratefully accepted.

Rick Jaffe, Esq.

UC Flu Mandate Injunction case Update, (nothing definitive yet)

UC Flu Mandate Injunction case Update, (nothing definitive yet)

Normal practice in most cases is that a tentative decision is issued the day before the “hearing” date, which normally is just an opportunity for the losing party to tell the judge why she is wrong. In big cases, like the State case against Uber and Lyft, the judge heard the argument, reserved decision, and three days later issued a ruling.

That’s what is going to happen in our case. The judge has postponed the hearing until Thursday at 2:30 and sent both sides an email invitation to participate in the blue jeans platform hearing. He could decide from the bench, but probably more likely he will tell us he is taking it under advisement and issue a written ruling in a few days.  If so, I expect him to continue his de facto TRO barring the UC from taking any action against non-flu mandate-compliant members of the community. Maybe this time the UC will listen to him.

The public is free to watch or listen to the hearing. I’ll post a link on how to get there before the hearing.

So, at least we haven’t been thrown out of court yet, and the judge is obviously taking this very seriously. I suspect he will have some tough questions for both sides.  Usually, you can get a good sense from a judge about what’s on his mind and what’s bothering him from his questions.

fingers crossed.

 

Rick Jaffe, Esq.

 

 

 

UC Flu Mandate Deadline Day is here, or it isn’t, or maybe it is for some, or some parts of it . . . .

UC Flu Mandate Deadline Day is here, or it isn’t, or maybe it is for some, or some parts of it . . . .

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.

  1. Under the two executive orders, compliance with the mandate was required by November 1st, which is tomorrow
  2. 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.
  3. 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.
  4. 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)
  5. 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.

 

 

 

 

 

 

Breaking (but confusing) News on the UC Flu Mandate Deadline: The UC has now publicly extended the denial of access deadline for faculty and staff until November 16th, but there may be a very big catch/poison pill

Breaking (but confusing) News on the UC Flu Mandate Deadline: The UC has now publicly extended the denial of access deadline for faculty and staff until November 16th, but there may be a very big catch/poison pill

Per my past few posts, on Monday morning,  we filed an application to file a motion for contempt and/or for alternative relief for a TRO mandating that the UC tell the UC community that the November 1st deadline had been abated until the judge hears our Preliminary Injunction motion on November 4th. I pointed out in our papers that the UC Regents website was still showing the November 1st deadline.  The UC Regents has officially announced that the denial of access to UC facilities won’t start until after November 16th, at least for faculty and staff.

Here is the link:  https://ucnet.universityofcalifornia.edu/coronavirus/frequently-asked-questions-for-employees-about-the-2020-21-uc-influenza-vaccination-order.html#1_2

But there is a big rub. It seems like they have not extended the paperwork deadline for medical exemptions or religious accommodation past November 1st, which seems like more hair-splitting with the judge’s order.

Here are two questions and answers posted on the UC Net:

“Q4. Is there a penalty or consequence for faculty, other academic appointees, and staff if they do not get a flu shot?

A4. Individuals who do not certify that they have received the 2020-2021 flu vaccine or have an approved exemption or accommodation will not have access to University facilities effective November 16, 2020. If the inability to access University facilities affects an employee’s ability to perform job functions, supervisors will work with employees to find alternatives so they can continue to work.

Q7. Will faculty, other academic appointees, or staff working remotely this fall need to document immunization by November 1?

A7. If faculty, other academic appointees or staff working remotely need to access a UC facility at any time, they must certify by November 1 that they have received the 2020-2021 flu vaccine, have an approved exemption or accommodation, or have a pending request for an exemption or accommodation.”

Does this cover faculty and staff who work on campus? 

I am not sure.

What about students?

They don’t seem to be covered in these FAQs, and this web site seems to be about faculty and staff.

I also saw that Berkeley’s Chief people officer (or whatever he’s called) has made a similar statement to Berkeley employees. I have no information about any other dissemination of the November 16th extension of the no access to campus order.

So, the only thing I can say for sure is that if you are faculty or staff working remotely but think you might have to be on campus at some point this year, then by November 1st, you have to have your paperwork in for a medical exemption (which is almost impossible to get) or religious accommodation, in order to be able to access a UC campus after November 16th, subject to the order of the court, currently scheduled to be finalized on November 4th.

Anything beyond that, well, your guess is as good as mine.

Rick Jaffe, Esq.

 

 

NON-Update on the UC Flu Vaccine Mandate Injunction Case

NON-Update on the UC Flu Vaccine Mandate Injunction Case

 

It’s Thursday morning. Under the executive orders, the UC’s Flu vaccine mandate requires compliance by Saturday, November 1st. However as previously reported, the judge in our injunction case has ordered the UC not to take any action against any member of the UC community until the hearing on our Motion for Preliminary Injunction.

Per my prior post, on Monday, October 27th we filed a request to file a motion for contempt and/or for a TRO because the UC was continuing to publicize the November 1st deadline and was hiding the fact that the deadline has been put off. The UC responded by in effect saying, hey it’s a big place, (big ship takes time to steer) word gets out slowly, but we’ve sent private memos to the chancellors (and maybe a few others) about it and that’s about all this poor little university can do.

And besides judge, you didn’t actually and specifically tell us in your order that we can’t keep misleading our community into thinking they had to get the needle by Saturday.  So bad on you judge.  And, anyway, November 4th is just a few days after our deadline. And did we say that we’re trying to protect our community with an additional “layer of protection”, and those who don’t recognize the beneficence of our actions, well, they will over time and after they get the needle because the pandemic is bad and the community needs that extra layer.

So all the papers are in and now we just wait until the judge issues an order on the request for a contempt hearing, or a tentative decision which should come down Tuesday afternoon.

What should you do if you are a member of the UC community and do not want to take the flu shot?

The best thing to do is to do nothing until the judge makes his decision.  If he grants the preliminary injunction the mandate will be abated until the trial of the case. If he denies the motion, he will probably order some kind of short grace period to comply.

For now, other than providing your HR person or supervisor with the information about the court order, and perhaps emailing the UC attorneys and request their intervention in a denial of access to a UC facility or denial of a benefit if that is happening, there is really nothing more that can be done except waiting for the judge to decide one or both of the two issues before him now.

No need to keep sending me emails about the UC’s continued publicizing of the November 1st deadline since the judge knows that this is continuing to happen.

There is some chance the judge will throw a curveball and do something not expected. If so, we’ll know it when we see it.

So, sit tight and don’t be intimidated by the UC’s bullying.

Rick Jaffe, Esq.