Supreme Court Lets Navy Consider COVID-19 Vaccination Status in Assignment Decisions

Allen Smith, J.D. By Allen Smith, J.D. March 28, 2022

​In an emergency order, the U.S. Supreme Court restored the Navy's ability to consider COVID-19 vaccination status when making decisions about assigning and deploying members of the Navy. We've gathered articles on the news from SHRM Online and other media outlets.

"If you are a military service member, you should assume that choosing not to get vaccinated will have a major impact on your ability to continue in your role," said David Gordon, an attorney with Mitchell Silberberg & Knupp in New York City. "If the military decides you are ineligible for a role based on your vaccination status, don't count on the court system coming to your rescue."

High Court's Emergency Order and Concurring Opinion

As is common in emergency orders, the Supreme Court's majority provided no reasoning for its decision. Nonetheless, in a concurring opinion, Justice Brett Kavanaugh said federal courts shouldn't insert themselves into military decision-making. He cited a statement the government submitted from Admiral William Lescher, vice chief of naval operations, who said it would be a "dereliction of duty" to order "unvaccinated personnel into an environment in which they endanger their lives, the lives of others and compromise accomplishment of essential missions."

(The Wall Street Journal)

District Court Judge's Order Put on Hold

A federal judge in Texas ruled earlier this year that the Navy must let members of the elite special operations community opt out of the Defense Department's COVID-19 vaccination requirement if they had religious objections. The judge's order further forbade commanders from making any changes to their military assignments based on a refusal to be vaccinated. The Supreme Court put the judge's order on hold "insofar as it precludes the Navy from making deployment, assignment and other operational decisions." This enables the Navy to issue deployment orders based on COVID-19 vaccination status.

(NBC News)

Religious Exemptions Sought

Lawyers for the group of sailors that sued had argued that the Navy had granted hundreds of nonreligious exemptions. They said that in asking the high court to allow vaccine status to be considered, the Navy was seeking "license to engage in hostile tactics designed to coerce plaintiffs into disregarding their religious beliefs."


Government's Request 'Rubberstamped'

Justices Samuel Alito Jr. and Neil Gorsuch said they would have let the injunction remain in place. "By rubberstamping the government's request for what it calls a partial stay, the court does a great injustice to the 35 respondents—Navy SEALs and others in the Naval Special Warfare community—who have volunteered to undertake demanding and hazardous duties to defend our country," Alito wrote. "These individuals appear to have been treated shabbily by the Navy, and the court brushes all that aside."

(The Washington Post)

Earlier Supreme Court Rulings

Earlier this year, the Supreme Court blocked the Occupational Safety and Health Administration's vaccine-or-testing rule for large employers. In a separate opinion, the Supreme Court let the federal Centers for Medicare & Medicaid Services require COVID-19 vaccination for health care workers at Medicare- and Medicaid-certified providers and suppliers.

(SHRM Online)



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