October 22, 2020

UC Barred From Taking Action Against Students or Employees for Not Getting Flu Shot Until After Hearing Date

By

Richard Jaffe

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You might recall from a past post that the case was previously set for Nov. 12. We filed a so-called “ex parte application” to move the hearing back to October (it had originally been set to be heard on Oct. 14 by another judge). University of California (UC) attorneys objected to the reset request in large part because the UC was not going to take any action against any student or employee until the injunction hearing took place. Nonetheless, the judge reset the motion for Oct. 22.

This is a very big deal of a case and there has been much paper flying back and forth, including many back and forths this week. Even today, the UC filed papers objecting to papers I filed on Monday which contained an email from a high UC Davis employee incorrectly telling staff that the flu mandate applied to remote workers.

The judge is obviously taking this motion very seriously, and that is a very good thing. He wanted more time to consider all the papers and write an opinion that will have enormous implications. Judge Seabolt gets to be the first judge in the country to weigh in on whether the state can mandate a vaccine during a pandemic where the vaccine doesn’t treat the pandemic disease and where there is reason to believe that the flu shot could actually increase COVID cases, hospitalizations and deaths. That’s a lot to think about. It seems like he’s trying to get it right, and that is certainly extremely encouraging, since in my view, the more anyone reasonable thinks about it, the worse the mandate looks because of the lack of proper procedure in its issuance, and the lack of proof that the vaccine won’t cause much more harm than good. So I am all for the judge taking all the time he needs on this.

That all being said, since the UC attorneys had already represented that the UC would not take any action against anyone for not getting the shot until the hearing (then scheduled for Nov. 12), the judge ordered the UC to honor its representation to the court until the hearing on Nov. 4.

Here is the judge’s ruling:

“This Tentative Ruling is made by Judge Richard Seabolt Plaintiffs’ Motion for Preliminary Injunction is CONTINUED to 1:30 p.m. on Nov. 4, 2020. The court requires additional time to review this matter.

The parties shall send courtesy copies of their papers directly to Department 521 via overnight mail no later than October 22, 2020. The parties shall comply with the form and format requirements of rule 3.1110 of the California Rules of Court.

UC shall not take adverse action against any employee or student who comes to campus who has not had a flu shot between now and when this court hears this matter. (See UC’s October 8, 2020 Opposition to Application to Reset Hearing Date in which UC committed not to do so.)”

The bottom line:

The UC flu mandate executive orders requiring compliance by Nov. 1, is no longer in effect by order of superior court judge Richard Seabolt! You now have sometime after Nov. 4 to comply, assuming the judge denies the motion, or you won’t have to comply at all, if the judge grants the motion.

I assume that the UC will stop forthwith publicizing the Nov. 1 deadline which has been stayed by the court’s order.

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