As defense disruptions loom, Biden eases up on vaccine refusers
CQ-Roll Call November 3, 2021
WASHINGTON — As the first deadline under federal vaccination orders hit Tuesday for active-duty Air Force personnel the Biden administration said firing those who refuse jabs should not be the first enforcement option.
The administration is requiring that not just military personnel but also federal civilians and the employees of U.S. government contractors receive the COVID-19 vaccine. That has brought up the question of whether firing those who do not comply will be effectively mandatory. If so, thousands of federal civilians, contractors and uniformed personnel might be forced out of work.
That prospect is nowhere more daunting than in the defense sector, especially for small to midsize Pentagon contractors for which the departure of even a small percentage of skilled workers could have damaging effects on their business and on America's arsenal.
The armed services, too, which are struggling to recruit and retain personnel, could lose thousands of servicemembers — a blow that in some services could be equivalent to losing a major base.
With unease about the mandates rising and Republicans making political hay out of the concerns, administration officials have now been forced to straddle a line. They still insist on mandating vaccines but are now planning to enforce the edicts gradually and incrementally, if only because doing otherwise could set in motion adverse fallout — for national security and for the president's political fortunes.
"The administration's more flexible approach is sensible," said Mark Cancian, a defense expert with the Center for Strategic and International Studies. "The number of employees refusing vaccination is small, but in a tight labor market with fragile supply chains, losing even a handful of skilled workers can cause serious disruption. With the servicemembers, DOD additionally faces the bad optics of disciplining personnel with exemplary service records, including combat tours."
The more relaxed approach to enforcement has not been sufficient for Republicans who oppose the mandates.
Sen. Tommy Tuberville, R-Ala., who has been among the defense industry's most vocal proponents in Congress on the vaccine mandate, told CQ Roll Call the White House's new approach to enforcement does not go far enough.
"The administration's vaccine mandate is still a compliance burden on small contractors, and this new guidance doesn't change that fact," Tuberville said in an emailed statement. "Mandates — no matter how 'flexible' the White House tries to make them — will impact the workforce, so I'd encourage the White House to focus on protecting Americans' liberties while pursuing a holistic strategy to combat COVID."
Defense industry executives have buttressed Tuberville's case.
Large contractors such as Raytheon Technologies already expect to replace thousands of employees, but smaller outfits that stand to lose fewer workers could still find themselves in trouble if those who leave are critical employees. Beyond that, contractors have said the order leaves unanswered questions about the best way for firms to implement it.
White House and Pentagon officials had begun last week to signal that the administration would not vigorously enforce its vaccination edict. The White House made the softer approach official on Monday, when the administration updated its guidance for federal contractors on how to comply with the mandate, which looms for them on Dec. 8. It now says, in effect, that contractors who work for the Pentagon and other U.S. departments and agencies need not immediately fire employees who refuse to get vaccinated and who lack a legally allowed religious or medical justification.
The guidance says it is up to companies how to enforce the requirement but recommends they start with education and fire people only after additional noncompliance. Since the refusals are generally the product of distrust in vaccine safety, the administration believes that education will help sway the reluctant.
Meanwhile, at the Pentagon on Monday, John Kirby, DOD's top spokesman, was asked about the vaccination mandate for armed services personnel. Kirby told reporters that Defense Secretary Lloyd J. Austin III had instructed military leaders to take steps short of terminating troops who aren't vaccinated before considering discharges.
"If it comes to doing something of a punitive nature, they certainly have that right and that authority," Kirby said of U.S. military commanders. "It's just that the secretary wants them to exhaust other measures before having to do that."
Kirby pointed out that 97% of active and reservist military personnel are at least partially vaccinated with at least one dose. Nonetheless, some concerns are evident.
As the Air Force's deadline for active-duty personnel arrived Tuesday, the service's latest compliance figures, from Oct. 12, showed that nearly 4% of the total force was still not fully vaccinated.
It is a small percentage but a large number of people.
"As of last week, the data suggest between 10,000-12,000 airmen were still unvaccinated," tweeted Kate Kuzminski, a defense expert with the Center for New American Security, noting that this figure is equivalent to a large Air Force base.
The services have different deadlines for personnel to be fully vaccinated. Most fall in November or December, although Army reservists, about a quarter of the U.S. military, have until June 2022.
The services have also taken different approaches to the enforcement question. The Navy and Marine Corps, where personnel deploy for months at a time in confined spaces on ships, are the strictest. They have issued guidance indicating that refusal without an exemption would result in separation.
By contrast, the Defense Department's other services — the Air Force, Space Force and Army — have only said that a range of disciplinary options are available.
Even the Navy's stricter guidance did not say how promptly a discharge would happen. Mike Hanzel, a former Navy lawyer who is now a civilian attorney specializing in military law, said the services frequently begin the process of implementing a punishment, even a separation order, and then withdraw it when compliance is met.
Many Republicans — such as Sen. James M. Inhofe of Oklahoma, ranking member on the Armed Services Committee — have called for a suspension of the mandate for troops out of concern for military readiness. But proponents of the vaccines in the administration and beyond also cite readiness as the reason to ensure military personnel are fully vaccinated.
Sen. Jack Reed, D-R.I., chairman of the Armed Services Committee, points out that troops already receive 17 different mandatory vaccines, and perhaps other shots, depending on where and when a servicemember has to deploy.
Other observers point out that the services would not even consider the possibility of losing so many people from their ranks if the cause was not important.
"What would cause the Air Force to separate such a large swath of airmen?" tweeted Kuzminski on Tuesday. "First: it's a readiness issue. Unvaccinated airmen are non-deployable. In an era of increasing competition, that's a real liability."
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