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The Military Vaccine Mandate Applies Only to the Fully Approved Vaccine

Senior military soldier waiting for vaccination while young female doctor in protetctive suit pulling COVID-19 vaccine from vial with syringe.

On August 24, 2021, Secretary of Defense Lloyd J. Austin III issued a COVID-19 vaccine mandate for all members of the Armed Forces under DoD authority on active duty or in the Ready Reserve, including the National Guard.

As stated in the Secretary of Defense's memorandum, the DoD vaccine mandate "will only use COVID-19 vaccines that receive full licensure from the Food and Drug Administration (FDA)." Service members who have voluntarily received a vaccine under emergency use authorization (EUA) are considered vaccinated for the purposes of the mandate, but those who are currently unvaccinated can only be required to take a fully approved vaccine. This limitation is required by federal law: per 10 U.S.C. ยง 1107, a federal statute, EUA-authorized vaccines cannot be mandated for members of the military.

While the DoD memorandum does not specify the name of a particular vaccine, the only fully FDA-approved vaccine as of this writing is Comirnaty, which was created by Pfizer and BioNTech. As such, the vaccine mandate can only be enforced with respect to this vaccine; service members cannot legally be mandated to receive any other COVID-19 vaccine until and unless that vaccine is also fully approved by the FDA.

As of the Secretary of Defense's August 24, 2021 memorandum, Comirnaty, the licensed vaccine, was not yet available in the United States. The EUA-authorized Pfizer-BioNTech vaccine, which has been available since December 2020, has the same formulation as Comirnaty and can be used interchangeably without safety or effectiveness concerns, but it is legally distinct, according to the FDA.

We continue to monitor the situation and stand ready to protect the rights of service members and anyone else who is subject to a vaccine mandate.

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