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Which COVID-19 Vaccine Can the Military Mandate?

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The Pentagon has announced that COVID-19 vaccinations are now mandatory for Department of Defense Service Members according to a memo recently released by Secretary of Defense Lloyd J. Austin.

With mandatory vaccinations now here, many service members have begun exploring their eligibility for medical or administrative exemption (which includes religious exemptions). If you are concerned about the lawfulness of a mandatory vaccination or believe you may qualify for an exemption, contact one of our military defense lawyers today to learn more about your rights.

WHO DOES THE COVID-19 VACCINE MANDATE APPLY TO?

On 24 August 2021, Secretary of Defense Austin directed that the Secretaries of the Military Departments “immediately begin full vaccination of all members of the Armed Forces under DoD authority . . . who are not fully vaccinated against COVID-19.” This includes all service members “on active duty or in the Ready Reserve, including the National Guard.”

According to the memo, “[s]ervice members are considered fully vaccinated two weeks after completing the second dose of a two-dose COVID-19 vaccine or two weeks after receiving a single dose of a one-dose vaccine.” Notably, service members with previous COVID-19 infection are NOT considered fully vaccinated.

While the Pentagon did not state a specific date by which service members must be fully vaccinated, the memo requires that vaccinations begin “immediately” and that the Secretaries of the Military Departments impose “ambitious timelines for implementation.”

The Department of the Navy (DON) has already announced that all DON active duty service members, who are not already vaccinated or exempted, will have to be vaccinated within 90 days and all Reserve Component service members must be vaccinated with 120 days of the issuance of ALNAV 062/21, released on 30 August 2021.

WHICH COVID-19 VACCINE CAN THE MILITARY MANDATE?

The Secretary of Defense stated that mandatory vaccinations “will only use COVID-19 vaccines that receive full licensure from the Food and Drug Administration (FDA), in accordance with FDA-approved labeling and guidance.” Whether that will be true in practice, however, is yet to be seen.

On 23 August 2021, the FDA approved the first COVID-19 vaccine. The vaccine, previously known as the Pfizer-BioNTech COVID-19 Vaccine, will now be marketed as “COMIRNATY”.

That same day, the FDA reissued a letter of authorization allowing the EUA to “remain in place for the Pfizer-BioNTech COVID-19 vaccine” and “to authorize use of COMIRNATY (COVID-19 Vaccine, mRNA) under this EUA for certain uses that are not included in the approved BLA.” In other words, the FDA will continue to allow the Pfizer-BioNTech vaccine to be administered under an EUA.

With both vaccines potentially available, critics have questioned which vaccine service members will be ordered to take: the Pfizer-BioNTech vaccine or COMIRNATY? This question is particularly troublesome given the FDA’s recent statement there is not enough COMIRNATY available for distribution to the public at large:

Although COMIRNATY (COVID-19 Vaccine, mRNA) is approved to prevent COVID-19 in individuals 16 years of age and older, there is not sufficient approved vaccine available for distribution to this population in its entirety at the time of reissuance of this EUA.

Service members ordered to take a COVID-19 vaccine should confirm that any vaccine they receive has received “full licensure” from the FDA “in accordance with FDA-approved labeling and guidance.” Failure to provide the proper vaccine could create legal issues for the Government if a service member refuses to take an unapproved vaccine.

Despite the clear distinction between the FDA-approved COMIRNATY and the FDA-authorized Pfizer-BioNTech, the Department of Defense has stated that the two vaccines can be used “interchangeably for the purpose of vaccinating Service members” in accordance with the SecDef’s vaccine mandate. This position is based on FDA guidance contained in a Frequently Asked Questions section of their website. The Department of Defense has not explained the FDA’s declaration that the two vaccines are “legally distinct.”

On October 12, 2021, Wisconsin Senator Ron Johnson penned a letter to President Biden, Secretary of Defense Austin, and Joint Chiefs of Staff Chairman Mark Milley questioning whether the DoD’s mandatory COVID-19 vaccinations are in accordance with Secretary Austin’s mandate. Senator Johnson specifically raised concerns about service members being forced to receive vaccinations that are not FDA-approved.

MJA is aware that some service members have already been ordered, in writing, to take the Pfizer-BioNTech vaccine since COMIRNATY is not available.

ARE THERE ANY POTENTIAL EXEMPTIONS FROM MANDATORY VACCINATION?

Even if a mandatory vaccination order is determined to be lawful, some service members may be exempt from taking the vaccination due to medical, administrative, or religious reasons.

Generally, requests for religious exemptions must include the service member’s name, rank, MOS/branch, and a description the religious belief contrary to immunization. Supporting documents, like letters from religious leaders, are optional but may be helpful in assisting commanders in a request.

Service members requesting religious exemption are also required to meet with the unit chaplain to discuss the basis for their religious objections. The chaplain must interview the service member and provided a memorandum addressing the religious basis and sincerity of the service member’s request. The chaplain has the discretion to recommend either approval or disapproval of the exemption request but is not required to make such a recommendation.

Service members must also be counseled by a licensed healthcare provider to ensure they are making an informed decision. This counseling should address, at a minimum: (a) Specific information about the diseases concerned; (b) Specific vaccine information including benefits and risks; and (c) Potential risks of infection incurred by unimmunized individuals.

According to the DoD’s memo, service members who are “actively participating” in COVID-19 clinical trials are exempted from mandatory vaccination until such trial is complete.

CONTACT MJA TODAY

An order from a superior commissioned officer to take the COVID-19 vaccination is likely to be considered a lawful military order, and service members who disobey such orders do so at their own peril.

If you are concerned about the lawfulness of a mandatory vaccination or believe you may qualify for an exemption, contact one of our military defense lawyers today to learn more about your rights.

Editor’s Note: This post was originally published in September 2021 and has been updated to include clarifying information from the Department of Defense.

The post Which COVID-19 Vaccine Can the Military Mandate? appeared first on Military Justice Attorneys.

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