A federal judge in Chicago said Covid-era federal protections pre-empt a class action lawsuit accusing Amazon of violating Illinois’ biometrics privacy law through scans aimed at identifying the virus in company employees.
Amazon Services employee Cynthia Redd accused the company of violating the Illinois Biometric Information Privacy Act through use of thermal body temperature cameras at its warehouse in Monee. She alleged the company collected and stored data without employees’ knowledge or consent and then disclosed the information to other Amazon entities, software vendors and other firms.
Amazon sought summary judgment with respect to Redd’s claims in her individual capacity, citing immunity under the Public Readiness and Emergency Preparedness Act. U.S. District Judge Sunil Harjani granted that motion in an opinion filed June 4.
U.S. District Judge Sunil Harjani
| U.S. Senate Judiciary Committee, Public domain, via Wikimedia Commons
The PREP Act dates to 2005, Harjani explained, and in March 2020 the U.S. Health and Human Services Secretary Alex Azar declared Covid-19 a public emergency under that law. The cameras in question were used for about 17 months, including while Redd worked at the Monee warehouse, known as MDW7, from October 2020 to March 2022, after which she transferred to her current facility, MDW2.
“Amazon has not used thermal cameras to screen employees’ temperatures at MDW2 during the time Redd has worked at MDW2,” Harjani wrote. “Moreover, Amazon no longer uses any thermal cameras, including the ICI camera systems, to screen employees’ temperatures at any Amazon facilities, including MDW7 and MDW2.”
Although Redd raised several oppositions to Amazon’s motion for summary judgment, Harjani said his analysis used as “the starting and ending point” the basic PREP Act language. After framing Redd’s lawsuit as a “claim for loss” of privacy, he quoted a 2024 U.S. Ninth Circuit Court of Appeals opinion, Maney v. Brown, which held the law “covers ‘all claims for loss’ related to the administration or use of covered countermeasures. The use of ‘all’ indicates a sweeping statutory reach.”
Harjani further said there is nothing in the PREP Act limiting its immunity provisions to “certain tort claims” or excluding certain “statutory violations” claims.
“The PREP Act includes one exception to its grant of immunity for covered countermeasures administered by covered persons” Harjani wrote. “The ‘sole exception’ to the immunity granted under the PREP Act is a federal action for ‘death or serious physical injury proximately caused by willful misconduct.’ That exception does not exempt BIPA statutory violations from the Act’s immunity protections.”
Although Redd cited an advisory opinion from HHS attorneys to strengthen her position, Harjani said the memo stated it didn’t bind the agency or federal courts and is not a binding legal document. He further noted the statement contained no legal analysis supporting the idea PREP Act immunity is limited to personal injury or property damage. Harjani also rejected Redd’s argument her BIPA claims are related to Amazon’s failure to follow protocols and not causally related to its use of body temperature cameras, explaining there would be no need to secure consent absent a system for collecting protected data.
Redd pointed to a situation where employees were allowed to sue a company for making workers arrive 15 minutes before their shifts to undergo Covid screenings, but Harjani said that situation turned on the company’s refusal to pay workers for that time, whereas Redd’s complaint has nothing to do with Amazon’s compensation policies.
Because he granted summary judgment on Redd’s individual claims before the litigation reached class certification, Harjani’s opinion terminated the entire case.
Plaintiffs are represented by attorneys Ryan Stephan and James Zouras, of the firm of Stephan Zouras, of Chicago.
Stephan did not respond to a request for comment on behalf of Redd.
Amazon has been represented by attorneys Susan D. Fahringer, Ryan Spear, Debra R. Bernard and Kathleen A. Stetsko, of Chicago and Seattle.