Can the military incentivize voluntary vaccinations? A guest post analyzes the law and policy
As Lawfire® readers know from a previous post (“Can troops be ordered to take a COVID vaccine? A guest post analyzes the law“) there is a clear legal path for the Secretary of Defense, if he wants, to get approval to issue a lawful order requiring all military members to get vaccinated against COVID-19. However, as discussed in this post, “Shouldn’t the SecDef do everything he can to address his #1 priority?”, that’s not the path he’s elected to pursue.
This presents a practical dilemma for military commanders: how do they wage a battle against the pandemic–which the SecDef says is his #1 priority–without the authority to order their troops to get the very same vaccinations their Commander-in-Chief is telling all Americans to receive?
Unsurprising to me, in an effort to support the SecDef’s #1 priority and the President’s admonition–not to mention ensuring the readiness and deployability of their units–some commanders want to resort to various administrative incentives to get troops to voluntarily take the vaccination.
Therein, however, lies the tricky part: when could an “incentivized” vaccination become one that is not legally “voluntary”?
Figuring out the answer to that question is why today’s guest post could not be more timely. Lawfire® contributor Maj Whitney Wiles expertly walks us through the law and policy. Like so many things in the national security arena, I think you’ll find this issue is more complicated than it may seem. Fortunately, we have Maj Wiles to help guide us. Here’s her essay:
Administrative Action as a Tool to Influence Service Member Vaccination
by Major Whitney L. Wiles, USA, JAGC
I. Background
The Department of Defense (DoD) continues to administer COVID-19 vaccinations to service members (SMs) pursuant to a Food and Drug Administration (FDA) Emergency Use Authorization (EUA).[1] Under this authorization, the choice of whether to receive a vaccination remains voluntary for all Americans—to include SMs throughout the DoD.[2]
Reports have indicated that large numbers of SMs have elected not to inoculate.[3] In response to this, many military leaders continue to campaign for vaccination in an effort to persuade SMs to voluntarily receive the vaccination.
Army public affairs offices are combating misinformation and conducting research on why Soldiers are refusing to vaccinate.[4] Additionally, in the absence of DoD or Army-wide policy on the matter, some Army commanders are “incentivizing”[5] vaccinations that cannot be lawfully administered absent voluntarily-obtained informed consent.[6]
Are programs that incentivize vaccination a good idea? How fast and loose can the Army play with the word “voluntary”? What, if any, level of pressure is permissible for commanders to exert in order to encourage (or pressure) SMs to receive the vaccination? How does readiness factor into this analysis? Let’s discuss!
II. Favorable and Adverse Administrative Actions
Commanders, motivated by a desire to nest with SECDEF’s priorities,[7] may have questions about the permissibility of influencing vaccination decisions through administrative personnel actions.
The voluntary nature of the COVID-19 vaccine and the Army’s commitment to readiness are important concepts to understand in an analysis of a commander’s left and right limits in influencing SM vaccination decisions.
A. Voluntary and Ready
Defeating COVID-19 is listed first on SECDEF Austin’s priority list.[8] Building readiness is also listed as a top three priority.[9] Unit readiness is “the ability to provide capabilities required by the combatant commanders to execute their assigned missions.”[10]
Medical readiness enables commanders to “measure, achieve, and sustain Soldiers’ health to perform their war time requirements.”[11] Commanders—not healthcare providers—are charged with making deployability determinations for all Soldiers under their command with medical readiness classification/deployment-limiting conditions.[12] Although these deployability determinations should be made in conjunction with input from healthcare providers, readiness is a commander’s program.[13]
Today’s commanders must consider unit and medical readiness in the context of a world-wide pandemic where an available and effective[14] vaccination exists . . . but where the vaccination is a voluntary one that commanders do not currently have authority to direct. What does voluntary mean in this context?
The Merriam-Webster Dictionary defines voluntary as proceeding from the will or from one’s own choice or consent; acting or done of one’s own free will without valuable consideration or legal obligation.[15] Black’s Law Dictionary defines voluntary as, free; without compulsion, solicitation, or consideration; gratuitous.[16]
The Joint Ethics Regulation discusses, but does not define, the word voluntary. Although no one is contemplating punitive action, the Manual for Courts-Martial (MCM) states that “voluntary” consent is determined based on all available circumstances; mere submission or acquiescence to one in a position of authority is not voluntary consent.[17] Likewise, a “voluntary” plea agreement is one free of force, threats, or outside promises.[18]
But, perhaps most helpful in understanding the Department of the Army’s interpretation of the word voluntary is included in the Army’s fundraising regulation, which includes a voluntary giving mandate.[19] Army Regulation (AR) 600-29 prohibits “actions that do not allow free choice or create the appearance that employees do not have free choice.”[20]
Regulation dictates that “granting special favors, privileges, or entitlements, such as special passes, leave privileges, or the wearing of civilian clothing” are prohibited and inconsistent with the spirit of non-compulsory giving.[21] It is worth highlighting that the proponent of AR 600-29 is the Administrative Assistant to the Secretary of the Army.[22]
The language of AR 600-29—combined with dictionary definitions and MCM guidance—paints a relatively clear picture of the Army’s stance on what is and is not “voluntary.” Most obviously likely to undermine the voluntary nature of the COVID-19 vaccine is the imposition of adverse administrative action.
B. Adverse Administrative Action and Derogatory Information
The imposition of adverse administrative action against Soldiers who refuse vaccination under the EUA would be wholly inappropriate, if not outright unlawful. Adverse administrative action can include the receipt of negative counseling, reprimand, administrative reduction, bar to reenlistment, or separation from the service.
Certain adverse administrative actions require the suspension of favorable personnel action through the imposition of “flags,” which denote a Soldier’s status as “unfavorable.”[23] An unfavorable status prevents the receipt of awards and decorations, temporary or permanent movement, promotion, attendance at school, reenlistment, reassignment, discharge or retirement.[24] Letters of reprimand and concern are considered “unfavorable information.”[25]
If a commander issues a locally-filed letter of concern to a Soldier for refusing voluntary vaccination, this “derogatory information” would not only require imposition of a flag, it could also be retained in the Soldier’s local file for up to eighteen months and be referenced at the time of performance evaluation.[26]
The consequences of this sort of adverse action absolutely cut against the voluntary nature of the vaccine—an attribute that the Secretary of Health and Human Services purposefully included as a mandatory condition of EUA approval, which has been (in effect)[27] co-signed by SECDEF and the President of the United States.[28]
The question of whether a commander can (or should) influence voluntary vaccination through positive personnel action is more nuanced, but also should be avoided.
C. Positive Personnel Actions
Commanders are equipped with tools to motivate positive outcomes to include favorable counseling, public acknowledgement, awards, and the allowance of certain privileges. Leave is not a favorable personnel action;[29] however, regular and special passes are privileges authorized at the discretion of the unit commander as a means of recognizing “exceptional performance of duty.”[30]
Similarly, positive acts and contributions that do not meet criteria for military decorations or awards may be recognized by written or oral expressions of commendation or appreciation.[31] Such expressions must be documented in writing and included in the recipient’s permanent military record, which can be consulted in determinations of promotion or selection for certain military positions.[32]
In addition to letters of appreciation, certificates of achievement, positive counseling statements, and public acknowledgement, coins may also be presented to SMs “for acts of exceptional or unique service” or for “contribution toward accomplishment of the mission.”[33]
The allowance of these positive personnel actions to influence Soldiers to voluntarily vaccinate is not per se unlawful. However, the presentation of positive personnel actions that could have long-term, favorable career implications compromises the voluntary nature of the vaccine.
For example, a Soldier awarded a certificate of appreciation for voluntarily vaccinating will be awarded promotion points.[34] A commander’s decision to award such a certificate would, in essence, provide an earlier promotion (with an associated pay increase) in exchange for a vaccination.
This sort of action is inadvisable and is likely to result in complaints from Soldiers exercising their rights not to vaccinate a drug lacking full FDA approval. Although the allowance of a special pass or coin does not carry long-term career enhancement, it is still inadvisable when we apply departmental guidance on the word “voluntary.”
Taking all previously discussed definitions together, a voluntary vaccine is one a SM feels no compulsion to accept.[35] A voluntary vaccine is one elected without legal consideration or obligation.[36] If a SM merely submits or acquiesces to a vaccination induced by his or her commander—that consent has not be voluntarily obtained.[37] If a vaccine is induced by virtue of force, threats, or outside promises, it has not been voluntarily elected.[38]
Vaccines induced through the grant of “special favors, privileges, or entitlements, such as special passes, leave privileges, or the wearing of civilian clothes” are vaccines not voluntarily elected.[39] In determining whether a decision to vaccinate has been voluntarily made, leaders should consider the totality of the circumstances surrounding that decision.[40]
III. Big Picture: Policy
The Pentagon is not considering a COVID-19 vaccine incentive program (perhaps because of the concerns addressed in this note).[41] The fact remains that a large population of Americans (including SMs) would feel more comfortable vaccinating after the COVID-19 drug receives full FDA approval.[42]
The EUA’s informed consent requirement recognizes (and respects) that sentiment. Both positive and adverse administrative personnel actions—in effect—impermissibly undermine the EUA voluntary condition.[43] Positive personnel actions are less obviously inappropriate, and commanders bent on awarding voluntary vaccination should do so with caution.
Principled counsel is professional advice, which influences informed decisions, on law and policy.[44] Arguably, any administrative personnel action in response to a Soldier’s voluntary vaccination decision should be avoided as bad policy unless it is directly linked to a commander’s readiness program.[45]
Even then, administrative consequences resulting from SM decisions not to vaccinate should be limited to only those actions necessary to protect the health of the force (i.e. loss of deployment opportunities or duty position requiring vaccination) and should not be followed with negative evaluations or other “bad paper” directly linked to the Soldier’s election.[46]
Notes
[1] Authorizations of Emergency Use of Two Biological Products During the COVID-19 Pandemic; Availability, 86 Fed. Reg. 5200 (Jan. 19, 2021). It is highly unlikely that the Secretary of Defense (SECDEF) will request presidential authorization to mandatorily inoculate SMs prior to full FDA approval. See Fauci says Military Members Who Opt Out of Covid vaccine are Inadvertenty ‘Part of the Problem’ Amanda Macias, CNBC, Mar. 4, 2021, 7:41PM (“[W]hat the secretary wants—is for the men and women of the department to make the best and most informed decision for them and for their health and the health of their families.”).
[2] The Defense Health Agency’s vaccination implementation program specifically states the vaccine will be voluntary. Memorandum from Dir., Def. Health Agency to Assistant Sec’y of the Army (Manpower and Reserve Affs.) et al., subject: Department of Defense (DoD) Coronavirus Disease 2019 (COVID-19) Vaccination Program Implementation 6 (31 Dec. 2020) [hereinafter COVID Memo].
[3] Patricia Kime, Almost One-Third of US Troops Are Refusing COVID Vaccines, Officials Say, Military.com (Feb. 17, 2021), https://www.military.com/daily-news/2021/02/17/almost-one-third-of-us-troops-are-refusing-covid-vaccines-officials-say.html.
[4] Haley Britzky Soldiers Are Refusing the Vaccine out of Spite: ‘This is the first time I get to tell the Army no!’, Task & Purpose, Apr. 27, 2021, https://taskandpurpose.com/news/fort-carson-coronavirus-vaccine-reasons/. This article includes a chart pulled from Fort Carson’s Facebook page, which documents the top twelve reasons Fort Carson Soldiers have refused to vaccinate. Id. The chart answers anti-vaccination sentiment with pro-vaccination data to persuade Soldiers that vaccination is both safe and effective. Id.
[5] See Oren Liebermann, US Army Bases Offering Vaccine Incentives But No Military-Wide Policy for Now, CNNPolitics.com, May 13, 2021, 9:56PM, https://www.cnn.com/2021/05/13/politics/us-military-vaccines/index.html [hereinafter Liebermann] (publicizing that the Joint Base Lewis-McChord installation commander has implemented a policy providing days off work (pass) to vaccinated personnel). Although this article classifies extended gymnasium access and indoor dining as commander instituted vaccination “incentives,” such measures can justifiably be said to protect the health of the force. Such policies may also be in accordance with local or national health department guidelines. Given the medical and unit readiness hook, gymnasium and indoor dining restrictions or allowances linked to vaccination status cannot be said to infringe upon the voluntary aspect of the vaccine.
[6] See infra note 24.
[7] Memorandum from Sec’y of Def. Austin to All Dep’t of Def. Emp., subject: Message to the Force 1 (4 Mar. 2021) [hereinafter SECDEF Priorities Memo].
[8] Id. at 1.
[9] Id. at 2.
[10] U.S. Dep’t of Army Reg. 525-30, Army Strategic Readiness Assessment Procedures glossary (9 June 2015) [hereinafter AR 523-30].
[11] U.S. Dep’t of Army Reg. 40-502, Medical Readiness glossary (27 Jun. 2019) [hereinafter AR 40-502].
[12] AR 525-30, supra note 7, para. 107.
[13] Id.
[14] See, e.g., Press Release, Pfizer, Pfizer and Biontech Confirm High Efficacy and No Serious Safety Concerns Through up to Six Months Following Second Dose in Updated Topline Analysis of Landmark Covid-19 Vaccine Study (Apr. 1, 2021), https://www.pfizer.com/news/press-release/press-release-detail/pfizer-and-biontech-confirm-high-efficacy-and-no-serious.
[15] Merriam-Webster, https://www.merriam-webster.com/voluntary (last visited Apr. 24, 2021).
[16] Black’s Law Dictionary, https://www.thelawdictionary.org/voluntary (last visited Apr. 24, 2021).
[17] Manual for Courts-Martial, United States, Military Rules of Evidence [hereinafter M.R.E.] 314(g)(4) (2019 ed.) [hereinafter 2019 MCM].
[18] Id. Rule for Courts-Martial 910(d).
[19] U.S. Dep’t of Army Reg. 600-29, Fund-Raising within the Dep’t of the Army para. 1-9 (7 Jun. 2010) [hereinafter AR 600-29].
[20] Id.
[21] Id. para. 1-10e. While the fundraising regulation is helpful in understanding the word “voluntary,” not all aspects of this regulatory provision can be applied to vaccination incentives. For example, AR 600-29 prohibits keeping lists of contributors and prohibits supervisors from inquiring about financial contributions. Id. at 1-10b & 1-10d. With respect to vaccination, a Soldier’s vaccination history directly relates readiness. As such, a commander may lawfully inquire about a Soldier’s vaccination status and keep a tally of vaccinated Soldiers. All of this is to say, while this regulatory definition of “voluntary” is helpful, not all fundraising guidance can or should be applied in a vaccination scenario.
[22] Id. Proponent and Exception Authority.
[23] U.S. Dep’t of Army Reg. 600-8-2, Suspension of Favorable Personnel Action (Flag) para. 2-2(c) (5 Apr. 2021) [hereinafter AR 600-8-2]. Flags are required in instances of administrative reduction boards and upon initiation of reprimand, censure, or admonishment, and can prevent service members (SMs) from attending schools, promoting, permanently changing stations, or otherwise advancing in their respective careers. Id.
[24] Id. para. 3-1.
[25] U.S. Dep’t of Army Reg. 600-37, Unfavorable Information glossary (10 Oct. 2020) [hereinafter AR 600-37]. Unfavorable information is defined as “credible derogatory information that may reflect on a Soldier’s character, integrity, trustworthiness, or reliability.” Id.
[26] Id. para. 3-5e. While negative counseling (normally documented in writing on a Department of the Army Form 4856) does not require flag imposition, written records of such are also retained in local files and consulted at the time of performance evaluation. Id.
[27] For emergency use of products lacking full Food and Drug Administration (FDA) approval, the Secretary of Health and Human Services (HHS) must establish conditions for approval that are necessary or appropriate to protect public health. 21 U.S.C. § 360bbb-3 (2011). For the COVID-19 vaccinations currently approved via Emergency Use Authorization (EUA) the Secretary HHS required informed consent as a mandatory condition of EUA approval. See, e.g., FDA, Fact Sheet for Recipients and Caregivers: Emergency Use Authorization (EUA) of the Moderna COVID-19 Vaccine to Prevent Coronavirus Disease 2019 (COVID-19) in Individuals18 Years of Age and Older 4 (Dec. 2020), https://www.fda.gov/media/144638/download; FDA, Fact Sheet for Healthcare Providers Administering Vaccine (Vaccination Provers) Emergency Use Authorization (EUA) of the Pfizer-Biontech COVID-19 Vaccine to Prevent Coronavirus Disease 2019 (COVID-19) 7 (Jan. 2021), https://www.fda.gov/media/144413/download. The DoD is abiding by this condition. See COVID Memo, supra note 4. However, pursuant to 10 U.S.C. § 1107a, at the request of the Secretary of Defense (SECDEF) the Commander in Chief has the authority to waive the Secretary HHS’s informed consent mandate and require mandatory inoculation for SMs if doing so would be in the interest of national security. Exec. Order No. 13139, 64 Fed. Reg. 54,175 (Oct. 5, 1999); 10 U.S.C. § 1107a (2000). SECDEF Austin has not requested a presidential waiver; and, President Biden has publicly stated that the vaccination should remain voluntary. Grace Hauck, Yes, some Americans may be required to get a COVID-19 vaccine but not by the federal government, USA TODAY, (Dec. 5, 2020), https://www.usatoday.com/story/news/nation/2020/12/05/covid-vaccine-required-government-employers/3797885001/#. As such, both the Commander in Chief and the SECDEF have, in effect, agreed with the Secretary HHS that the vaccine should be administered to SMs only with informed consent.
[28] COVID Memo, supra note 2.
[29] U.S. Dep’t of Army Reg. 600-8-10, Leaves and Passes para. 2-3 (5 Feb. 2006) [hereinafter AR 600-8-10] (establishing that leave is an entitlement).
[30] Id. para. 5-29(c)(1).
[31] U.S. Dep’t of Army Reg. 600-8-22, Awards para. 2-7 (5 Mar. 2019) [hereinafter AR 600-8-22].
[32] Id. para. 10-16.
[33] Id. para. 11-3. With respect to coins, vaccine receipt could arguably be tied to “contribution of mission accomplishment,” given SECDEF’s top priority.
[34] U.S. Dep’t of Army Reg. 600-8-19, Enlisted Promotions and Reductions para. 3-17d (16 May 2019).
[35] See Black’s Law Dictionary, https://www.thelawdictionary.org/voluntary (last visited Apr. 24, 2021) (defining voluntary as without compulsion).
[36] In this context, consideration means the inducement of a legal transaction or “an act or forbearance or the promise thereof done or given by one party in return for the act or promise of another.” Merriam-Webster, https://www.merriam-webster.com/consideration (last visited May. 14, 2021).
[37] See supra note 16 (citing voluntary consent in the 2019 MCM).
[38] See supra note 17 (citing voluntary plea agreements in the 2019 MCM).
[39] Id. para. 1-10e. While the fundraising regulation is helpful in understanding the word “voluntary,” not all aspects of this regulatory provision can be applied to vaccination incentives. For example, AR 600-29 prohibits keeping lists of contributors and prohibits supervisors from inquiring about financial contributions. Id. at 1-10b & 1-10d. With respect to vaccination, a Soldier’s vaccination history directly relates readiness. As such, a commander may lawfully inquire about a Soldier’s vaccination status and keep a tally of vaccinated Soldiers. All of this is to say, while this regulatory definition of “voluntary” is helpful, not all fundraising guidance can or should be applied in a vaccination scenario.
[40] See 2019 MCM, M.R.E 314(g)(4) (stating that voluntary consent is analyzed by considering all available circumstances).
[41] See Liebermann, supra note 5 (noting that the best incentive is the knowledge one is doing the best thing for his or her family and teammates).
[42] Elinor Aspegren, Christine Fernando and Christal Hayes, More Than a Third of Americans Vaccinated; Pfizer Vaccine May Become First in US to Get Full FDA Approval: Latest COVID-19 Updates, USA Today, May 8, 2021, https://www.msn.com/en-us/news/us/more-than-a-third-of-americans-vaccinated-pfizer-vaccine-may-become-first-in-us-to-get-full-fda-approval-latest-covid-19-updates/ar-BB1gsuh7 (“Experts say the FDA approval could reduce vaccine hesitancy and empower employers to require their workers to get vaccinated.”). See also Haley Britzky Soldiers Are Refusing the Vaccine out of Spite: ‘This is the first time I get to tell the Army no!’, Task & Purpose, Apr. 27, 2021, https://taskandpurpose.com/news/fort-carson-coronavirus-vaccine-reasons/ (highlighting a chart indicating that lack of FDA approval is the number one reason why Soldiers at Fort Carson have thus far refused to vaccinate).
[43] FDA, Fact Sheet for Recipients and Caregivers: Emergency Use Authorization (EUA) of the Moderna COVID-19 Vaccine to Prevent Coronavirus Disease 2019 (COVID-19) in Individuals18 Years of Age and Older 4 (Dec. 2020), https://www.fda.gov/media/144638/download; FDA, Fact Sheet for Healthcare Providers Administering Vaccine (Vaccination Providers) Emergency Use Authorization (EUA) of the Pfizer-Biontech COVID-19 Vaccine to Prevent Coronavirus Disease 2019 (COVID-19) 7 (Jan. 2021), https://www.fda.gov/media/144413/download.
[44] TJAG and DJAG SENDS, Principled Counsel—Our Mandate as Dual Professionals, Vol. 40-16.
[45] See supra note 2. Again, it is both lawful and advisable for a commander to limit movement of unvaccinated personnel in high-density areas when such a determination can be tied to medical readiness. See id. (suggesting dining indoors and conducting physical fitness activities without a mask are vaccine “incentives”). Restriction of movement and mask wear implementation, which protect unvaccinated and high-risk members of the population, should not be viewed as undercutting the EUA’s informed consent mandate.
[46] Similarly, there is no legal objection to ensuring troops are medically ready for upcoming missions, to include requiring appropriate vaccinations. If a commander pulls a SM from a duty assignment based on a refusal to inoculate—where such inoculation is necessary for medical readiness—certain consequences may “feel” adverse, but are lawful and do not meet the definition of adverse administrative action. For example, a Soldier pulled from a deployment due to a refusal to receive a COVID-19 may receive a less desirable duty assignment, may lose the opportunity to deploy, may experience limitation on career opportunities, and the like. These second- and third-order-effects are the expected consequences of duty options for unvaccinated Soldier in light of the commander’s charge to make deployability determinations. However, it would be bad policy to provide an adverse evaluation to a Soldier pulled from a deployment based on his or her decision not to receive an EUA vaccination.
About the author:
Major Whitney Wiles is an active duty Judge Advocate in the United States Army, presently pursuing her Masters in Military Law at The Judge Advocate General’s School in Charlottesville, Virginia.
Her previous assignments include Legal Assistance Attorney, 25th Infantry Division, Schofield Barracks, Hawaii, 2012–2013; Administrative Law Attorney, 25th Infantry Division, Schofield Barracks, Hawaii, 2013–2014; Trial Counsel, 3d Brigade Combat Team, 25th Infantry Division, Schofield Barracks, Hawaii, 2014–2016; Senior Defense Counsel, Fort Leonard Wood Field Office, US Army Trial Defense Service, 2016-2018; Deputy Chief of Administrative Law, 21st Theater Sustainment Command, Kaiserslautern, Germany, 2018-2019; Officer-In-Charge of Kleber Legal Services Center and Garrison Legal Advisor, Kaiserslautern, Germany, 2019-2020.
Whitney is a member of the Illinois bar and holds a B.S. (Journalism) from Ohio University and a J.D from Florida Coastal School of Law.
Disclaimers
The views and opinions expressed here are the author’s and do not necessarily reflect the official policy or position of the U.S. Army, the Judge Advocate General’s Corps, the Department of Defense, or any other agency of the U.S. government.
The views expressed by guest authors also do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
