In a pair of notable new lawsuits, employees of both public and private employers have filed legal challenges to mandatory COVID-19 vaccination policies. First, on April 16, 2021, in the Middle District of North Carolina, a former employee of the Durham County Sheriff’s Office filed suit claiming that he was unlawfully terminated for failing to take the COVID-19 vaccine. More specifically, the employee claims that the Department’s mandatory vaccination policy violates the Food, Drug, and Cosmetic Act by requiring the use of a product only authorized for emergency use. The employee also claims that the policy violates his right to due process under the United States Constitution and North Carolina state law. The defendants have filed a motion to dismiss the employees claims.

Second, on May 28, 2021 in the District Court of Montgomery County, Texas, a group of 117 unvaccinated employees from Houston Methodist Hospital filed suit challenging their private employer’s mandatory vaccination policy. Similar to the North Carolina case, the employees claim that the mandatory vaccination policy violates federal law by forcing individuals to receive vaccines that are only authorized for emergency use. The employees also colorfully compare the mandatory vaccination requirement to the “barbaric medical experiments performed on unwilling victims of Nazi Germany’s concentration camps.”

Both lawsuits are directly at odds with the EEOC’s guidance that federal employment laws do not prevent employers from requiring employees to be vaccinated for COVID-19. It bears noting, however, that the EEOC’s guidance is not legally binding. Theoretically, either of these two lawsuits could result in a judicial ruling invalidating an employer’s mandatory vaccination policy. Even though it is unclear whether these lawsuits have any likelihood of success, and could be mooted if the FDA fully approves the COVID-19 vaccines, the litigation is worth watching and represents the legal risks that employers might face by mandating vaccination.