Labor & Employment Law Daily Wrap Up, COVERAGE, LIABILITY—9th Cir.: PREP Act immunity applies to officials in city employee’s COVID-19 case, (Oct 6, 2026)

By Todd Harrison, J.D.

After receiving a religious exemption from the city’s vaccination policy, the employee contended that requiring him to test and wear masks created a hostile work environment.

Affirming a district court’s dismissal and denial of a motion for reconsideration of a City of Pasadena employee’s claims surrounding its COVID-19 vaccination policies, the Ninth Circuit agreed with the lower court that the defendants had immunity from all the employee’s claims under the Public Readiness and Emergency Preparedness (PREP) Act. The court went on to clarify the causation requirement of the PREP Act’s immunity provision, finding that the district court erred by focusing on the types of legal claims asserted by the employee rather than the type of injuries he alleged. The court determined that the allegations that he suffered physical, emotional, and property damage resulting from the city’s COVID policies were sufficient to establish causation for PREP Act immunity (Schmidt v. City of Pasadena, No. 25-488 (9th Cir. Oct. 5, 2026)).

Vaccination policy. In August 2021, the City of Pasadena implemented a COVID vaccination policy for its employees. As a forensic specialist in the Pasadena Police Department, the employee in this case was subject to this policy. He requested and received a religious exemption from the vaccine requirement but was required to test and wear a mask.

After being placed on unpaid administrative leave for refusing to comply with the testing and masking requirements, the employee eventually returned to work in November 2021, complying with the requirements until the policy was rescinded in March 2022. He nevertheless continued to take issue with the city’s implementation of the COVID safety policy, contending that the defendants created a hostile work environment by revealing his unvaccinated status through the masking and testing requirements.

Lawsuit. This action was originally filed on November 8, 2021, and five iterations of the complaint ultimately ensued. For the purposes of this appeal, the court focused on the third amended complaint (TAC) and the fourth amended complaint (FAC). The TAC asserted 21 federal and state claims, all related to the testing and masking requirements, against the city and several current and former employees. The defendants moved to dismiss, asserting among other defenses that they had immunity under the PREP Act. The district court concluded that the PREP Act applied but did not immunize the individual defendants from all the employee’s claims. Nevertheless, it found that the individual defendants were entitled to other forms of immunity and dismissed the entire TAC.

Subsequently, the employee filed the FAC. The city moved to dismiss, and the employee moved for reconsideration of the TAC dismissal based on what he argued was new evidence regarding the COVID testing he had undergone. The district court denied the motion, reasoning that the evidence raised by the employee was previously available and was not enough to cure the legal deficiencies underlying the TAC’s dismissal. In addition, the court granted the defendants’ motion to dismiss the FAC and denied the remaining discovery motions as moot. This appeal followed.

PREP Act immunity. According to the defendants, all the employee’s claims were barred by the PREP Act. The court agreed. All the claims arose from the city’s implementation of a COVID testing and masking policy for its employees that he was required to comply with from November 2021 through March 2022. This five-month period was “plainly within” the declaration issued by the HHS Secretary as part of the federal government’s response to the pandemic, explained the court.

As to whether the COVID testing and masking policy met the PREP Act’s requirements for immunity, the court concluded that it did. Because both the city and individual defendants engaged in the “administration of a covered countermeasure,” both qualified as “covered persons” under the Act, said the court.

Covered countermeasures. In an effort to defeat immunity, the employee argued that COVID tests and face masks could not be considered “covered countermeasures.” The court was unmoved, finding that both the PREP Act and the HHS declaration plainly extended immunity for the administration of COVID tests and masks.

Here, the court noted that it had previously found that the HHS Secretary defined “covered countermeasures” about as broadly as the PREP Act permits. The testing and masking requirements imposed by the city plainly constituted a “diagnostic” and “respiratory protective device” under the declaration’s broad definition of “covered countermeasures,” said the court.

Causation. In dismissing the FAC, the district court found that the defendants were entitled to PREP Act immunity for only two of the employee’s state-law claims—the alleged deprivation without due process of the employee’s purported property interest in his DNA. The district court did not find that PREP Act immunity applied to the employee’s remaining claims, incorporating the reasoning from its earlier dismissal of the TAC that while the employee’s “claims involve alleged emotional injury,” his “claims primarily involve reputational harms for which [he] has not pleaded any emotional effect.”

This determination, explained the appellate court, misunderstood the causation requirement for PREP Act immunity. It thus opted to take the opportunity to clarify the causation requirement. Here, the employee sought damages for alleged mental and emotional injury and loss of property. Assuming without holding that the employee had a property interest in the saliva samples he provided for testing, it was plain his complaint alleged a loss of property.

When considering the issue, the district court focused on the types of legal claims pleaded by the employee rather than the type of injury he alleged. “This was incorrect,” said the appellate court. The PREP Act’s language stating “all claims for loss” is limited by the statute’s causation requirement, observed the court, not by the category of the legal claim. The alleged physical, emotional, and property damage the employee claimed he suffered as a result of the city’s COVID safety policies was sufficient to establish causation for PREP Act immunity, explained the court.

Motion for reconsideration. Turning to the employee’s motion for reconsideration, the court found insurmountable the employee’s characterization of expert evidence as “new.” In support of his motion, the employee submitted 20 exhibits, each of which was available to him before the TAC dismissal was issued. In denying the motion, the district court highlighted that many of the exhibits must have been previously available because they were submitted to the court prior to its dismissal. Because the evidence the employee relied on in his motion to reconsider was available prior to the district court’s TAC dismissal, it was appropriate for the district court to deny the motion.

The case is No. 25-488.

Judge: De Alba, A.

Attorneys: Vasu Vijayraghavan (Law Offices of Vasu Vijayraghavan) for Jonathan Schmidt. Matthew B. Nazareth (Meyers Nave) for City of Pasadena.

Companies: City of Pasadena

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