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What Service Members Need to Know About the Current Vaccine Mandate

Military Law

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Last week, the U.S. House of Representatives approved the 2023 National Defense Authorization Act (NDAA) with strong support on both sides, paving the way for the largest military budget ever at $858 billion. However, the part of the bill repealing the military’s COVID-19 vaccine requirement policy sparked the most debate.

The bill still needs to be approved by the Senate before being delivered to President Biden’s desk for a final signature. While President Biden and his administration have voiced their objections to the change in policy, it has not been indicated whether he will veto the legislation.

Regardless, should this pass, there will be a massive impact on the current military and recruiting landscape. Further, many service members may be curious as to how a repeal of the COVID vaccine mandate would impact any ongoing lawsuits or exemption requests. While this situation will continue to develop as the bill moves through Congress and the White House, here is what service members should be aware of when it comes to the current vaccine mandate.

What is the Current Military COVID Vaccine Policy?

The COVID vaccine mandate is still in effect for service members, currently requiring all members of the U.S. Military to receive their COVID vaccination shots. Although there are some federal court injunctions in place, those are generally only applicable to the individuals in that case, rather than any group of service members as a whole. It is unknown as to how Congress wants to approach members who either faced discipline or were discouraged from service as a result of this mandate.

That point will be one of the key areas to focus on as the 2023 NDAA reaches approval, as there is still lots of ongoing litigation based on service members’ desires or denials to receive a religious or medical exemption. Injunctions will no longer be necessary, but there will be the issue of damages for the service members who have been harmed by the controversial mandate.

For a brief snapshot of the current legal landscape when it comes to these religious exemption requests, it appears that there is a lot of ongoing litigation about how the government has been handling these types of requests. The approach used in most cases is a blanket denial using a relatively canned approach, regardless of the individual’s religion or health status.

These stiff responses seem to be a common theme when responding to requests for a vaccine exemption, and when it comes to medical exemption requests, the government has gone so far as to attack the credentials of medical doctors who have supported medical exemptions for some patients.

One of the most notable areas of concern when it comes to the current vaccine policy is its impact on military readiness. In the midst of a recruiting crisis, those in favor of sidelining the vaccine requirement argue that since most troops are young and healthy there is no point in requiring those who may be discouraged from joining to still receive a COVID vaccination shot.

According to sources, it appears that many of the branches of the service fell devastatingly short of their recruiting goals this year, with the Army only hitting about 25% of its annual recruitment goal. While there have been nearly 100 service member deaths attributed to COVID since its discovery, the mandate had been estimated to affect approximately 40,000 service members. This would have an even more devastating effect on military readiness.

What if the Mandate is Lifted?

Regardless of someone’s individual beliefs on the vaccine mandate, should the mandate be lifted, what should service members really need to be aware of?

To start, the removal of the mandate won’t be the end-all and be-all for current legal battles surrounding the issue. Lawsuits will continue; however, many people will likely be reinstated and/or compensated eventually for what the government has done to them and their military careers.

Additionally, there is a good chance that guidance will be passed down from senior leadership to allow service members who were separated due to vaccine refusal to reenter service—and hopefully remedy the poor recruitment numbers as well. The boards will also likely be instructed at some point to liberally grant discharge upgrades to anybody who was punished for refusing the vaccine.

Service members who were personally impacted by the vaccine mandate should keep a close eye on any developments regarding the 2023 NDAA, as it could have drastic impacts and implications on their current and future military careers.

As a Managing Partner at Tully Rinckey PLLC, a First Sergeant in the United States Army Reserve, and a combat veteran, Anthony Kuhn focuses much of his time on the representation of military personnel, federal employees, and federal agents. He can be reached at info@tullylegal.com or at (888) 529-4543.

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