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With the Armed Forces projecting a SARS-CoV2 vaccine mandate by Sept. 1, many military families are inquiring about their exemption rights for an experimental drug.
As of July 1, the military reported COVID vaccination rates of between 58% to 77% across all branches. That means potentially 25% of U.S. military personnel may seek exemptions. What are their rights?
Army Regulation AR40-562 provides the long-standing exemption rights for the Army, Navy, Air Force and Coast Guard, including active and reserve components.
This guidance pre-dates the SARS-CoV2 vaccine in its last updated version in 2013. Below we outline the guidance, as it applies to COVID vaccines.
Immunity testing and contraindication screening required
First and foremost, it is the responsibility of the medical authorities and command leaders to provide screenings prior to immunization.
Army Regulation AR40-562 states:
“Ensure patients are evaluated for pre-existing immunity, screened for administrative and medical exemptions, and/or evaluated for the need for medical exemptions to immunizations or chemoprophylaxis medications. Exemptions are granted per paragraph 2-6; document any exemptions.”
Positive PCR tests, antibody tests and T-cell tests should be documented in the medical record, according to the regulation:
“Before immunizing, conduct serologic testing where available. At a minimum, conduct serologic testing for antibodies for measles, rubella, hepatitis A, hepatitis B and varicella. Document medical exemptions for immunity (MI) in Service ITS. Documented medical exemptions for immunity will be accepted as evidence of immunity in lieu of vaccination.”
Because of the serious risks of vaccine reactions, medical authorities and command leaders must have first responders at the vaccination site with specified medical supplies equipment, as stated:
“Ensure emergency medical response is available and that personnel who administer immunizations receive training on cardiopulmonary resuscitation, administration of epinephrine and emergency response to immunization-adverse events.”
The military regulation also requires reporting of adverse reactions listed on the VAERS Table of Reportable Events Following Vaccination to the Vaccine Adverse Events Reporting System.
The military acknowledges some people have hypersensitivity or allergy to vaccines:
“Before administration of any medication, including vaccines, determine if the individual has previously shown any unusual degree of adverse reaction or allergy to it or any specific component of the vaccine or its packaging (for example eggs, gelatin, preservatives, latex.) Review the manufacturers package inserts and reference materials for product specific information.”
This requirement cannot be met for COVID vaccines because the vaccine package inserts are blank. This provides a reasonable basis for anyone concerned about an allergic reaction or anaphylaxis to abstain from the vaccine. Polyethylene glycol and polysorbate allergies are a common concern with the SARS-CoV2 vaccines.
Pilots and flight crews with risk of vision impairments and blood clots at altitude should be given particular consideration with the SARS-CoV2 vaccine.
Military acknowledges pregnancy is contraindication for vaccines
Under theArmy Regulation AR40-562’s concerns for “immunizing women of childbearing potential,” the military acknowledges pregnancy is a contraindication for vaccines:
“Discreetly ask her if she is, or might be pregnant. Document responses in health record. If the answer is “yes,” and the ACIP does not recommend the vaccine for use in pregnancy, then defer her from immunization or refer to an obstetric healthcare provider to determine whether the benefits of immunization outweigh risks in pregnancy.”
This is a very important section of the regulation concerning pregnant women. The Centers for Disease Control and Prevention (CDC) has taken the position that pregnant women “can” get the SARS-CoV2 vaccine because limited self-reporting data from new COVID vaccine safety monitoring systems did not identify safety concerns.
However as of July 22, the CDC’s Advisory Committee (ACIP) on Immunization Practices has not recommended the SARS-CoV2 vaccine for pregnant women, and therefore pregnant and breastfeeding women in the military have a legal right to exempt and cannot be required to receive the vaccine.
Prior to recommendation, the ACIP is required to review published clinical trials for pregnant and breastfeeding women and the developmental outcomes of their fetuses exposed in the womb. These trials have not been completed. Developmental and reproductive toxicity has not been studied, and risks to fertility are unknown.
Two types of exemptions allowed for COVID vaccines
There are two main types of exemptions in the military: medical and administrative.
The following are Military Medical Codes for exemption that apply to SARS-CoV2 vaccines:
MD: Medical, Declined. Pertains to optional vaccines, including any vaccines under Emergency Use Authorization (EUA).
MI: Medical, Immune. Provide evidence of immunity by serologic test or documented previous infection, or natural infection presumed.
MP: Medical, Permanent. Pertains to any contraindication determined by a physician.
MR: Medical, Reactive. Pertains to any previous severe reaction to a vaccine, including anaphylaxis, that required medical consultation.
MT: Medical, Temporary. Pertains to pregnancy, hospitalization, immune suppression, pending medical evaluation board, or any temporary contraindication to immunization.
The following are Military Administrative Codes for exemption that apply to SARS-CoV2 vaccines:
AR: Administrative, Refusal. Pertains to people who obtained a religious accommodation.
AS: Administrative, Separation. Pertains to people pending discharge, separation (within 60 days) and retirement (within 180 days.)
AT: Administrative, Temporary. Pertains to people pending legal action.
NR: Not Required. Pertains to service members transitioning to civilian employees or contractors.
Commanders have flexibility
Army Regulation AR40-562 gives flexibility to commanders to conduct a “disease threat assessment.”
This could result in a commander assessing that herd immunity has been established and COVID restrictions should be lifted to maximize unit training and mission capabilities.
This commander discretion could also result in administrative exemptions with individual assessments of mission critical personnel: “The commander has not directed immunization because of overriding mission requirements.”
In some geographic regions and units, there might only be one person with a critical military occupational specialty.
COVID vaccine mandates can be legally challenged
Army Regulation AR40-562 lists criteria for EUA drugs. This criteria can be legally challenged.
The regulation states:
“(1) The vaccine or drug may be effective in diagnosing, treating, or preventing the disease or condition. (2) The known and potential benefits of the vaccine or drug outweigh the known and potential risks. (3) There is no adequate, approved, and available alternative medical countermeasure.”
All of these requirements for the use of the EUA COVID vaccines demand evidence, and Judge Advocate General (JAG) offices at every military installation can assist with legal matters, such as pending separation or Uniform Code of Military Justice punishment for non-compliance with regulations.
The immunization regulation also has guidance for civilian personnel, contractors, military families and children and staff attending U.S. Department of Defense schools and daycares — they all have religious exemption and medical contraindication rights.
Service members are under the pending weight of a COVID vaccine mandate by presidential waiver or FDA approval. If mandates are enforced, this could adversely affect the Armed Forces retention, just as it did with the military’s anthrax vaccine program.