Pollak, Vida & Barer

In Schmidt v. City of Pasadena, published October 5, 2026, the 9th Circuit Court of Appeals affirmed the district court’s dismissal of the plaintiff’s lawsuit. In 2021, the city implemented a COVID-19 vaccination policy for its employees, requiring them to either receive the COVID-19 vaccination within one month of implementation or request a medical or religious exemption from the vaccination requirement. Employees who were found exempt were subject to a testing and masking requirement. The plaintiff requested and received a religious exemption from vaccination. He initially refused to test and mask, and was put on unpaid administrative leave. He eventually agreed to comply with those provisions, and returned to work. He contended the city created a hostile work environment by revealing his unvaccinated status through the masking and testing requirements. When he returned to work, he filed a lawsuit that went through multiple amendments. His Third Amended Complaint asserted 21 federal and state claims, all related to testing and masking requirements, against the city and several current and former city employees. The defendants moved to dismiss on grounds including immunity under the Public Readiness and Emergency Preparedness (“PREP”) Act. The district court concluded that the PREP Act applied, but did not immunize all of the individual defendants from all of the plaintiff’s claims. It found that the individuals were entitled to other forms of immunity and dismissed the complaint. The plaintiff filed a Fourth Amended Complaint, and moved for reconsideration of dismissal of the Third Amended Complaint based on purported new evidence. The district court denied the motion for reconsideration, and granted the defendants’ motion to dismiss the Fourth Amended Complaint.

The 9th Circuit affirmed the dismissal of the Fourth Amended Complaint on the ground that all of the defendants were entitled to immunity against all of the plaintiff’s claims under the PREP Act. The Act provides covered persons immunity from suit and liability for claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure. The Act’s immunity lies dormant until the Health and Human Services Department determines that a disease constitutes a public health emergency and makes a declaration that the Act’s immunity is in effect. The HHS Secretary made such a declaration in 2020 regarding COVID-19. Municipalities administering and using covered
countermeasures may be entitled to liability protection under the PREP Act for actions taken from February 4, 2020, to May 11, 2023. The plaintiff’s claims all arise from the city’s implementation of a COVID-19 testing and masking policy for its employees during the covered period. The city was a covered “person” under the Act as a “program planner” because it made policy-level decisions regarding administration and use of covered countermeasures. The individual defendants were all involved in implementing the testing-and-mask requirements, and so are “covered persons” under the Act. Both the saliva test and the masking received federal authorization for use in accordance with the Food and Drug Administration, and so met the requirements for a “covered countermeasure.” The court rejected the plaintiff’s contention that the test used was not be used as authorized under its Emergency Use Authorization. The 9th Circuit rejected the district court’s conclusion that PREP Act immunity did not apply to all of the plaintiff’s claims. The plaintiff seeks damages for alelged mentla and emotional injury and loss of property (his DNA) caused by complying with the city’s COVID-19 safety policies. Those allegations are sufficient to establish causation for PREP Act immunity, regardless of the category of the legal claim.