San Antonio lawyer weighs in on vaccine mandate concerns

Kelli Cubeta says because the mandate is in the early stages, a clear understanding is still in development

SAN ANTONIO – On the heels of President Joe Biden’s announcement that all employers with over 100 employees and those who work for the federal government now must get the Covid-19 vaccine, one local lawyer is addressing some questions that have surfaced in response.

Kelli Cubeta, with the Cubeta Law Group, advises businesses to pause on any changes to their policies as this mandate is still evolving.

“I would say to just sit and wait,” Cubeta said. “For now, employees and employers just wait until we know more before you spend a lot of time getting upset or putting policies in place that may not be consistent with what the actual rule says.”

One of the questions many are asking deals with the legality of the mandate.

“There are certain industries it is acceptable,” Cubeta said. “In the health care industry, it is commonly required that those people in a very sterile type of setting that they are required to be vaccinated.”

She stressed that the vaccine requirement should be in connection with job-related duties.

“Generally, that is the direction OSHA has been leaning in is that, ‘Yes, employers have a right to create a safe as possible of a workplace for their employees.’ But let me be clear, they have been very vague because there isn’t a bight line test on this,” Cubeta said.

Another question is, ‘What if I work remotely?’

“You can see where that is a bit of a stretch to say, ‘Ok, this vaccine is necessary for the safety of the others at the company,” she said. “Because, if they are not altogether in the same room, they are not interacting, then it is very difficult to make that connection.”

Termination based on vaccine status could be possible. Cubeta said if the new policy is in writing, challenging a termination could be difficult.

“Further assuming that it is job-related in terms of a policy requiring vaccination, if they are terminated then there would be an argument for the company to say, ‘You are being terminated for cause,’” Cubeta said. “Which means, ‘You violated a company policy, therefore we are terminating you.’ I think where it is going to be interesting is where people have an employment agreement that was written and signed at a time where Covid was not on anybody’s radar. What if now, the company is wanting to implement a new policy? That is where it really comes down to whether or not the mandates to be vaccinated is genuinely connected to the job.”

Cubeta added that as the Occupational Safety and Health Administration works out all of the kinks, employers will find that this is not a one-size-fits-all type of situation.

“In our company, for example, we have an employee who is genuinely concerned about getting the vaccine while pregnant,” she said. “She has received different opinions for different doctors where some have expressed concern about getting the vaccine while pregnant. That is a valid reason not to get one right now. You can’t just have an across-the-board, everybody get vaccinated. There has got to be a process or option for valid exceptions to be evaluated and there has got to be a means for which, what are going to do with people who have valid reasons for not getting vaccinated.”

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About the Authors:

Japhanie Gray is a reporter with KSAT12 News.

Misael started at KSAT-TV as a photojournalist in 1987.