With the recent announcement from the Department of Defense requiring that all service members receive a COVID-19 vaccination, many service members are wondering whether or not they will have any option to avoid taking the vaccine, or if they will have any legal footing to contest the formal mandate. Even before the full approval of the Pfizer-BioNTech COVID-19 Vaccine from the Food and Drug Administration, many branches were already being directed to prepare for the administration of a mandatory vaccine. Some service members have concerns about potential illnesses or other unforeseen medical issues.
Regardless of whether they give consent, should a service member face a medical side effect from receiving the vaccine, they may be able to seek some recourse through a DOD administrative process, which can include the National Vaccine Injury Compensation Program, the Countermeasures Injury Compensation Program, or disability compensation administered by the Department of Veterans Affairs.
Those hoping they would be able to opt out of receiving a vaccine would have a few potential options: service members may apply for a medical accommodation or an administrative waiver. The most common type of administrative waiver is a religious waiver.
This isn’t the first time the government has required service members to take a mandatory vaccine that service members hoped to avoid, and knowing what options are available to you is crucial when making decisions related to your career or personal health.
While many have voiced their concerns regarding the vaccine, there are certain processes service members can go through to get an accommodation or exemption from the vaccine. There are two kinds of exemptions that can be granted when it comes to immunizations—either a medical accommodation or an administrative waiver.
For a medical exemption, the opinion of a health care provider is necessary to prove that the service member is at risk of developing a new medical condition or of a medical condition worsening after taking the vaccine. There are many conditions that could qualify a service member for a medical exemption. Some examples would be if they have a compromised immune system, if they are allergic to components of the vaccine, or if they have had adverse reactions to vaccines in the past. However, medical doctors and paperwork are often hard to track down, and it only gets more difficult considering that many medical professionals are extremely busy during the pandemic. Considering the strict time frames the military has in place, it is best to act swiftly to avoid jeopardizing any chance of receiving an exemption.
The other exemption service members could seek is an administrative exemption. Typically, these are granted by the service member’s command, and there are many reasons that could justify the request for this exemption. In relation to the COVID-19 vaccines, however, many are seeking administrative exemptions based on the vaccines’ production conflicting with their religious beliefs. In the past, service members have sought a waiver after learning that certain vaccines were made from aborted fetal tissue. With many of the popular COVID-19 vaccines being produced or tested using fetal cell lines, many service members are seeking exemptions based on this fact. While religious exemptions are granted on a case-by-case basis, and can vary from branch to branch, knowing what procedures to go through and what arguments to present to your command is crucial.
This issue will likely be contested in court, and with the recent FDA approval of the vaccine, Courts will now have to decide on a new issue of whether forcing an unapproved vaccine on the nations’ protectors is a necessary and safe precaution.
Unfortunately, those who refuse to take the vaccine will likely face an administrative separation and could face criminal prosecution. This is regardless of your rank or years in the service. Hopefully, commands will be reasonable and understanding, but it is never too early to start gearing up for your defense.
Watch our recent webinar for an overview of what options are available for military personnel, and the potential ramifications for not taking the COVID-19 vaccine.
Currently, there is no avenue for service members to ignore the mandate without facing some sort of repercussion. The only way to ignore the mandate would be to get an accommodation or waiver. Anyone who does not qualify for a waiver would likely be facing separation.
The answer to this question would depend on the service member. Some will qualify for one, not the other. Some will qualify for both. This would be determined on a case-by-case basis. We draft religious accommodations more often because most individuals in the military are very healthy.
It would depend on the mission and for how long the mandate is enforced, but deployment is unlikely.
Members of the military may request a religious accommodation or medical waiver. However, the vaccine mandate is not based on an emergency use authorization.
Not without court intervention, the FDA has been very clear in stating that the EUA version and the Comirnaty are the same formula and are to be used interchangeably. The only different is that a name was granted to the EUA version after approval by the FDA. This argument could potentially be persuasive in the right court looking to grant relief to service members, but it will almost definitely not hold up in the military.
We do not believe that President Biden has signed a waiver because the FDA approved a vaccine before it was necessary. The DoD is requiring that individuals be vaccinated. A waiver is no longer required because there is an FDA-approved vaccine. Service members are taking the approved vaccine or what is technically a vaccine that is formulated the same and used interchangeably with the approved Comirnaty vaccine. Some service members have chosen to receive a different vaccine.
No, not without first receiving an accommodation or waiver. However, if you have served that many years before any administrative discharge were to occur, you would be entitled to a separation board to determine the facts and circumstances situation.
There are a few additional administrative accommodations, but these will not result in long-term relief from the mandate. A service member might consider being transferred into the IRR and coming back if the mandate is lifted. If that is an option, it could help avoid having to go through MEPS again in the future. Service members should consider that this mandate is going to cause significant harm to the force and to the overall strength of our military, so options such as this one will be limited.
No, the DoD clearly addressed this in their memorandum to the military branches. Natural immunity will not result in a waiver of the mandate. The DoD clearly addressed this in their memorandum to the military branches. Natural immunity will not result in waiver of the mandate.
Yes, a religious exemption can be revoked as it is a discretionary decision. It could be revoked if it was ever determined that the request was based on fraud.
No, according to 42 U.S. Code § 300aa–22, “No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.”
However, individuals can file a petition with the National Vaccine Injury Compensation Program (VICP) administered by the U.S. Department of Health and Human Services (HHS) to receive compensation if they are found to have been injured by one of the vaccines covered by VICP. According to the Health Resources and Services Administration under HHS, “even in cases in which such a finding is not made, petitioners may receive compensation through a settlement.”
Since the vaccine mandate announcement, Tully Rinckey’s military law attorneys have been providing commentary to news and media outlets across the country. Please see the news stories and articles below featuring our attorneys:
*The FDA has recently fully approved the Pfizer-BioNTech COVID-19 Vaccine for all individuals 16 years and older. It is going to be marketed under the name Comirnaty for the prevention of COVID-19 disease in individuals 16 years and older. The vaccine is still under emergency use authorization (EUA) for individuals 12 through 15 years of age, and for the administration of a third dose in certain immunocompromised individuals.
There has yet to be any announcement from the FDA fully approving any other vaccine as of 8/23/2021.
For over 15 years, Tully Rinckey attorneys have assisted service members from all branches of the military. Our military law team were service members long before they became attorneys. They know the military, they know the law, and are ready to fight hard on your behalf. If you have issues taking the mandatory COVID-19 vaccine, you do have options, and our team of military lawyers is here to assist you every step of the way.