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An Illinois federal judge handed Amazon a pretrial win over accusations that it violated workers' biometric privacy rights by using thermal cameras to screen for fevers during the pandemic, saying the company is immune from such claims under the Public Readiness and Emergency Preparedness (PREP) Act.

U.S. District Judge Sunil R. Harjani said the PREP statute is "definitely" on Amazon's side in employee Cynthia Redd's proposed class suit because the statute provides lawsuit and liability immunity to "all claims for loss" stemming from the administration or use of declaration-supported countermeasures covered by the statute.

Neither party disputed that the statute applied to both Amazon and its thermal cameras, but Redd argued its immunity protections were narrower and didn't extend to her Biometric Information Privacy Act (BIPA) claims. She argued immunity was granted only to "certain tort claims" for losses listed in the statute.

But Judge Harjani disagreed, saying the statute's plain language was "the starting and ending point" of his analysis. Using the word "all" in the immunity provision indicates a sweeping statutory reach, and similarly broad is the language stating it applied to "any claim for loss" caused by the covered pandemic countermeasures, he said.

"Nothing in the act limits the scope of its immunity to 'certain tort claims' or excludes claims for 'statutory violations,'" he said.

The PREP Act's only exception is for federal actions for "death or serious physical injury proximately caused by willful misconduct," the judge added. That does not include BIPA statutory violations, so it can't save Redd's claim, he said.

And the statute defines loss as "any type of loss, including" the four examples listed in the PREP Act, Judge Harjani said. That indicates an illustrative, rather than exhaustive, list, he said.

Redd argued her position was supported by a Department of Health and Human Services general counsel opinion stating that PREP Act immunity is limited to claims for business interruption, property damage and "death, physical, mental or emotional injury, illness, disability or condition, fear of such harm or need for medical monitoring."

But even that cannot win the day because the opinion states that it does not have the force of law, and neither the department nor federal courts are bound by it, Judge Harjani said.

The judge also rejected Redd's argument that her claims aren't causally connected to Amazon's thermal camera use, and that they stem instead from the company's failure to follow BIPA's informed consent requirements to use it. While the Seventh Circuit hasn't considered the meaning of "arising out of" or "relating to" in the statute, the appellate court has found in other contexts that it is broad, he said.

Still, Amazon's camera use clearly "played some role in bringing about or contributing to [Redd's] injury," Judge Harjani said, quoting Ninth Circuit precedent on this issue. If Amazon hadn't ever used its cameras, "the issue of consent would be moot," he said.

"Thus, the use of the cameras is a key nexus to Redd's claim, and ultimately contributed to the injury and the alleged privacy violation that she claims she suffered," the judge said.

The suit, which a different worker originally filed in state court, alleged Amazon implemented facial geometry scans and temperature checks as prerequisites for employees to enter its warehouses.

The measures were implemented as part of the company's fight against the easily spread COVID-19 coronavirus, according to the suit. But the company never informed its workers that it was collecting biometric identifiers through its facial recognition scans, and it never obtained their consent before requiring them to submit to the practice, the complaint alleged.

Amazon knew through biometric privacy litigation in 2019 over its Alexa devices that its coronavirus safety actions directly violated BIPA, but the company "implemented and continued [its] practice of violating [workers'] legal rights without regard to the law," the lawsuit claimed.

Amazon's conduct also raises "a material risk" that third parties will unlawfully access workers' biometric information, it alleged.

Representatives for the parties didn't immediately respond Wednesday to requests for comment.

Redd is represented by Ryan Stephan of Stephan Zouras LLP.

Amazon is represented by Ryan Spear, Susan Donnelly Fahringer, Debra Bernard, Erin Earl and Kathleen Stetsko of Perkins Coie LLP.

The case is Redd v. Amazon.com LLC, case number 1:20-cv-06485, in the U.S. District Court for the Northern District of Illinois.