Firing Military Personnel for Refusing Covid Vaccine
On August 24, 2021, the Secretary of the Department of Defense (DOD) issued a memorandum (the “DOD mandate”) requiring that all members of the U.S. armed forces “immediately begin full vaccination” against Covid-19.[1] Notably, then-President Biden—the Commander-in-Chief of the nation’s military forces—never issued an order mandating Covid vaccination for the U.S. military, although he had issued executive orders earlier that same year, expressly mandating Covid vaccination for federal employees and contractors. The absence of any formal directive from the Commander-in-Chief raised significant legal and constitutional concerns among critics who argued that something as consequential as an order requiring that the nation’s entire military take a new vaccine—particularly under emergency-use circumstances—must derive either from an order signed by the President, himself, or from explicit Congressional authorization.
Numerous servicemembers challenged the DOD mandate, contending that the Defense Secretary had overstepped his authority by unilaterally implementing a vaccine mandate without the requisite top-level authority. Under federal law, members of the military cannot be compelled to take any drug, medication, or other product (including a vaccine) under EUA circumstances without informed consent, unless “the President” determines that obtaining consent is not in the interests of national security.[2]
The DOD mandate also faced legal challenges in connection with the status of the Covid vaccines during the pandemic. On August 23, 2021, the FDA approved its first Covid vaccine (Pfizer-BioNTech), while all other Covid vaccines were available only under FDA Emergency Use Authorization (EUA).[3] DOD’s mandate was issued one day after the Pfizer vaccine received FDA approval—without President Biden’s waiver of informed consent. DOD nonetheless maintained that its mandate was lawful because at least one Covid vaccine (Pfizer) had been approved and was no longer subject to EUA requirements, including informed consent. In practice, however, doses of the approved Pfizer vaccine were initially scarce, and much of the military’s vaccine stock included non-FDA-approved Covid vaccines that were distributed under EUA.
As a result, the DOD mandate triggered numerous lawsuits. Servicemembers argued that DOD’s mandate violated federal law, as the troops were being forced to take EUA vaccines without informed consent or a presidential-level waiver of the consent requirement. Some also questioned whether the Secretary of Defense was authorized to mandate military vaccination without an executive order or statutory authorization from Congress. Other lawsuits challenged DOD’s mandate on First Amendment/Religious Freedom Restoration Act (RFRA) grounds, contending that servicemembers had been unfairly denied religious exemptions from the vaccine mandate and were instead compelled to compromise their sincere religious beliefs against vaccination in order to continue serving their country.
Notwithstanding the legal pushback, DOD strictly enforced its mandate for well over a year, and servicemembers who refused the Covid vaccine were subject to disciplinary action, including, in many cases, involuntary discharge from the military. By early 2023, the U.S. armed forces had discharged over 8,000 servicemembers—many of whom were wartime veterans nearing retirement—for refusing to vaccinate against Covid-19.
In response to the mounting controversy, Congress enacted the 2023 National Defense Authorization Act, which directed DOD to rescind the military vaccine mandate. The DOD rescinded its mandate on January 10, 2023.
[1] Secretary of Defense Lloyd Austin, Memorandum for Senior Pentagon Leadership, Commanders of the Combatant Commands, Defense Agency and DOD Field Activity Directors (Aug. 24, 2021), https://media.defense.gov/2021/Aug/25/2002838826/-1/-1/0/Memorandum-for-mandatory-coronavirus-disease-2019-vaccination-of-department-of-defense-service-members.pdf.
[2] 10 U.S.C. § 1107(f).
[3] According to the FDA, a vaccine that is FDA-approved has undergone the agency’s formal process for reviewing the quality, safety and effectiveness of medical products, including a comprehensive evaluation of preclinical and clinical data, as well as details of the manufacturing process, vaccine testing results, and other data to ensure the vaccine’s safety and efficacy—as opposed to EUA vaccines made available in response to an immediate public health emergency, but which have not undergone a formal review for safety and efficacy. See U.S. Food & Drug Administration, FDA Approves First COVID-19 Vaccine (Aug. 23, 2021), https://www.fda.gov/news-events/press-announcements/fda-approves-first-covid-19-vaccine.
April 10, 2025