More than 500 lawsuits have been filed challenging vaccine mandates in some fashion. These are likely just the tip of the iceberg, however, as there are thousands of such complaints lurking “beneath the surface,” in the form of agency charges and alternative avenues for resolving disputes.

Equal Employment Opportunity Commission

One of the ways that employees are challenging employer-imposed vaccine mandates is to allege that the employer has failed to accommodate a disability or religious belief that they claim conflicts with a vaccination requirement. These complaints against private employers generally arise under Title VII of the Civil Right Act of 1964 (Title VII), the Americans with Disabilities Act (ADA) and/or attendant state laws. Both Title VII and the ADA require that such complaints first be filed with the Equal Employment Opportunity Commission (EEOC) or state agency counterparts. Only after exhausting their administrative remedies, are employees supposed to file suit in court.

Many claimants are seeking emergency injunctive relief to bar enforcement of the mandate and have gone directly to federal or state court. Many more, however, are filing EEOC charges. According to EEOC data provided to Bloomberg BNA, more than 2,700 vaccine-related charges already have been filed with the agency.

National Labor Relations Board

Labor unions have filed a number of lawsuits challenging employer vaccine mandates, mostly against public employers. Unions also have filed charges against private employers with the NLRB and initiated arbitration against employers of all types to challenge implementation of vaccination mandates and other COVID-related policies.

Union challenges to private employers’ vaccine mandates (and to discipline or discharge arising from employees’ failure to comply) are filed as grievances that may be heard by arbitrators or pursued as unfair labor practice charges with the National Labor Relations Board (NLRB). Claims may allege, for example, unlawful implementation of COVID-related policies and/or challenge discipline issued under those policies as unlawful.

It is difficult to know how many such complaints have been asserted and how they will fare. A clearer picture will emerge as unresolved complaints are decided by arbitrators and administrative law judges of the NLRB, who will issue decisions that a Board panel may adopt, reject or modify on review. It will be some time before we see a precedential NLRB decision issued in a vaccine mandate case.