Health industry, government and other employers that adopted, currently use, or are evaluating using mandatory vaccination, testing, or other health-and-safety conditions of employment should understand, but take care not to overestimate the protection afforded by the Supreme Court’s June 1, 2026, decision denying certification of a Ninth Circuit ruling that employees cannot rely upon Section 1983 to challenge vaccination mandates imposed by governments or others acting under color of law.

The COVID-19 health care crisis and resulting federal and state mandates touched off a wave of challenges from individuals who objected to vaccination on religious, moral, scientific or other grounds. 42 U.S.C. § 1983 allows people to sue state or local government officials and certain parties acting under the color of law for violating their constitutional or federal rights while acting “under color of law.” Section 1983 became one of many popular theories that plaintiffs have relied upon to challenge vaccination requirements, including those directly imposed by federal or state governments, or their adoption and enforcement by health care and other employers, since federal and many state government entities mandated that health care providers and other workers be vaccinated during the COVID-19 outbreak. While the abatement of the COVID-19 health crisis has abated the concerns about the COVID-19 vaccination, specifically, health care and other organizations continue to use vaccine mandates to comply with federal, state or other requirements, address infectious disease and other safety concerns or both.

In light of these past and current practices, the U.S. Court of Appeals for the Ninth Circuit’s published decision in Curtis v. Inslee, No. 24-1869 (9th Cir. Oct. 6, 2025) that rejected the federal Section 1983 claims of more than 80 former employees of a nonprofit health care system terminated for refusing COVID-19 vaccination required under Washington State Proclamation 21-14 and the Supreme Court’s recent denial of certiorari on the Curtis decision provide important guidance for employers. The decisions are a useful roadmap of the federal claims that do not lie against employers and government officials who impose vaccination requirements—and, by contrast, a reminder of the claims that may still remain available under other laws.

Ninth Circuit’s Ruling In Curtis v. Inslee Not A Blanket Protection Against Vaccine Mandate Challenges

Health industry and other employers considering the implications of the Ninth Circuit’s Curtis decision should use care not to overstate the protections from vaccination mandate challenges of the Ninth Circuit’s decision or the Supreme Court’s refusal to review it.

The Ninth Circuit’s decision in Curtis arises from the August 20, 2021, Proclamation 21-14 issued by then-Governor Jay Inslee, which, like similar mandates issued by federal regulators and many other states, required vaccination against COVID-19 of all covered Washington health care workers, absent an exemption allowed in the Proclamation. The nonprofit health care system PeaceHealth adopted a corresponding policy, and terminated employees who refused to comply. Aila Curtis and more than 80 other former at-will employees sued PeaceHealth and the Governor for damages, asserting a wide range of statutory, treaty, regulatory, contractual, and constitutional theories including claims under Section 1983. As the Ninth Circuit summarized, the plaintiffs contended the only vaccine available before the deadline was an “investigational” product authorized only for emergency use, and that they were not adequately informed of an option to refuse it. The U.S. District Court for the Western District of Washington dismissed all claims, and the Ninth Circuit affirmed. See Curtis v. Inslee, No. 24-1869 (9th Cir. Oct. 6, 2025).

In rejecting the Curtis plaintiff’s Section 1983 challenges, the Ninth Circuit first held that none of the plaintiffs’ statutory and non-constitutional sources created a “specific and definite” right enforceable through 42 U.S.C. § 1983. Central to the workers’ case was the “right to refuse” theory premised on the emergency use authorization provision of the Food, Drug, and Cosmetic Act, 21 U.S.C. § 360bbb-3, which directs that recipients of an emergency-use product be informed of “the option to accept or refuse administration.” The Ninth Circuit explained that Congress confined enforcement of the Act to public actions brought in the name of the United States under 21 U.S.C. § 337(a), and that courts may not judicially create an implied private right of action. The statute therefore confers no privately enforceable right under Section 1983.

The Ninth Circuit also rejected the remaining non-constitutional sources on the same rationale—none supplied rights-creating language enforceable by these plaintiffs. Among other things, the Ninth Circuit found:

• The Public Readiness and Emergency Preparedness (PREP) Act, 42 U.S.C. § 247d-6, which at most imposes an educational obligation on a federal agency rather than on the employer or the State;
• 10 U.S.C. § 980 (restricting use of Department of Defense funds for human-subject research), a spending-power provision “especially unlikely” to confer an enforceable right;
• Article VII of the International Covenant on Civil and Political Rights, which the United States ratified as non-self-executing and which Congress has not implemented;
• 45 C.F.R. Part 46 (the “Common Rule” on human-subjects research), the Belmont Report, the Federal Wide Assurance agreement, the CDC COVID-19 Vaccination Program Provider Agreement, and the FDA Emergency Use Authorization letters—none of which create privately enforceable rights, and none of which make these employees third-party beneficiaries. As the court observed, the plaintiffs were “vaccine refusers” rather than the “vaccine recipients” who might benefit from such agreements.

Turning to the constitutional theories, the court held that neither the Spending Clause nor the Supremacy Clause supplied a freestanding Section 1983 right. It then rejected the Fourteenth Amendment claims:

• Substantive due process. The asserted “right to refuse an investigational drug without penalty” was foreclosed by Jacobson v. Massachusetts, 197 U.S. 11 (1905), and the Ninth Circuit’s en banc decision in Health Freedom Defense Fund, Inc. v. Carvalho, 148 F.4th 1020 (9th Cir. 2025) (en banc), under which COVID-19 vaccine mandates are reviewed for a rational basis and upheld where decisionmakers could rationally conclude the mandate protects public health and safety.
• Procedural due process. The plaintiffs’ at-will employment was not a constitutionally protected property interest, and the proclamation’s notice and individualized religious and medical exemption process supplied any process due.
• Equal protection. Because the workers did not constitute a suspect class, the mandate needed only survive rational-basis review—which it readily did. The court invoked the Supreme Court’s recognition of the public-health rationale for health care worker vaccination requirements in Biden v. Missouri, 595 U.S. 87 (2022).

While these Ninth Circuit rulings are helpful as far as they go, employers should not read the decision as resolving every claim. The Ninth Circuit affirmed dismissal of the state-law claims against the Governor, but it upheld the district court’s discretionary decision to decline supplemental jurisdiction over the remaining state-law contract and tort claims against PeaceHealth under 28 U.S.C. § 1367(c). The court expressly did not decide whether those state-law claims state a claim. Rather, it left the merits to the Washington state courts. The federal ruling thus disposes of the listed federal theories without insulating employers from potential state-law exposure.

Employers must also recognize other limitations in the Curtis ruling. The takeaway is not that vaccination or other health-and-safety mandates are immune from challenge. Rather, Curtis and the now-final disposition confirm that the most commonly asserted federal theories—an implied “right to refuse” under the EUA statute, the PREP Act, and substantive due process—generally do not provide workers a damages remedy against employers or officials for vaccination requirements, at least in the Ninth Circuit. Employers nonetheless should keep the following in mind:

• Document the exemption and accommodation process. By emphasizing that the proclamation provided notice and an “individualized” religious and medical exemption process, the Ninth Circuit signaled that factual distinctions weighed into its decisions. Employers reading this language should interpret this discussion as a strong indication that employers should maintain clear notice, a documented individualized interactive process, and consistent administration to position themselves to defend both constitutional and accommodation challenges.
• Other laws still apply. The Curtis decision only addresses Section 1983, constitutional, and EUA-based theories. It does not displace obligations or exposure under Title VII religious-accommodation and disability-accommodation requirements, the Americans with Disabilities Act (ADA) or Rehabilitation Act, state and local civil rights law, state and local leave laws, or collective bargaining or other contractual or statutory obligations. Mandate-related litigation increasingly proceeds on accommodation and contract theories rather than the theories rejected here.

What the SCOTUS Cert Denial Does—and Does Not—Mean for Employers

The Supreme Court’s denial of certiorari on the Curtis decision is not a ruling on the merits and sets no nationwide precedent; the practical effect is limited but meaningful as it leaves standing within the Ninth Circuit, the appellate decision stands as controlling authority, foreclosing the federal theories the workers advanced. The decision is a useful roadmap of the federal claims that do not lie against employers and government officials who impose vaccination requirements—and, by contrast, a reminder of the claims that may still remain available under other laws.

While the Supreme Court’s refusal to review the Ninth Circuit decision in Curtis v. Islee decision for now leaves in place that Court’s ruling that employees don’t havc a federal statutory or informed consent right to challenge vaccination requirements under Section 1983, employers also should keep in mind that the denial of certification confirms that vaccination or other health-and-safety mandates are immune from challenge. Rather, Curtis and the now-final disposition confirm that the most commonly asserted federal theories—an implied “right to refuse” under the EUA statute, the PREP Act, and substantive due process—generally for now do not provide workers a damages remedy against employers or officials for vaccination requirements in the Ninth Circuit.

It remains to be seen if the Supreme Court or other Circuit Courts in the absence of a Supreme Court ruling reach a different conclusion in future cases.

Employers should keep in mind that the Supreme Court’s current decision denying certification does not guarantee it will not take up another case in the future that could reject or qualify the precedent set by the Ninth Circuit. In addition to the continued need to manage these and other potential exposures arising from the establishment and enforcement of vaccination requirements on non-Section 1983 grounds, employers also should use care to avoid engaging in conduct that could create facts that employees might rely upon to charge their employer with retaliation for the employee’s good faith exercise of rights that the employee believed she or he possessed.

Employers also should understand that the denial of certification leaves Curtis in place as ruling precedent in the Ninth Circuit without creating a uniform national rule. This means other Circuits as well as state courts interpreting state law remain free to reach their own conclusions. Multistate employers should confirm how the controlling circuit and applicable state law treat these theories before relying on any single decision.

Take Aways For Adopting, Administering and Defending Vaccination Mandates

Given the guidance in the Curtis ruling and the limited reliance protection it and the Supreme Court’s denial of certification affords health industry and other employers using vaccination mandates, employers should take several steps to position their use and practices regarding vaccination for defensibility. Among other things:

• Document the exemption and accommodation process. Employers should ensure that their organizations appropriately communicate and administer the necessary “individualized” religious and medical exemption process in an appropriately documented manner to position themselves to defend both constitutional and accommodation challenges.
• Other laws still apply. Employers should review and develop appropriate processes to ensure their practices also comply with and are administered to comply with the ADA, the Rehabilitation Act, religious accommodation requirements under the First Amendment and other laws, as well as any state or federal mandates.
• Preserve the public-health record. Rational-basis review turns on what decision-makers could rationally conclude. Employers adopting health-and-safety requirements should document the legitimate business and safety rationale supporting the requirement at the time it is adopted.
• Get Experienced Legal Counsel. Considering these and other risks, employers using or responding to challenges to employee or service provider vaccination requirements should seek the assistance of experienced legal counsel in designing and administering those policies to minimize liability for discrimination and retaliation.

For Help or More Information

The author of this update, Cynthia Marcotte Stamer is an attorney Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization with decades of experience advising and assisting health industry and other employers to design, audit, and defend their employment and other risk management and compliance practices, including conducting audits and investigations, designing and updating compliance and risk management programs, responding to government investigations, conducting transaction, governance, and other due diligence, and assisting with other legal and operational compliance and risk management and legislative and regulatory affairs. She is available to assist your organization in assessing the impact of these developments and navigating the compliance and strategic steps that follow. For more information about these concerns or Ms. Stamer, contact Ms. Stamer via e-mail or via telephone at (214) 452 -8297.

For Help or More Information

The author of this update, Cynthia Marcotte Stamer advises health care providers, employer and union sponsored self-insured group heath plans, their sponsors and fiduciaries, insurers, their service and technology providers, and other health industry clients on NSA and other coverage and payment, enrollment, compliance programs, government investigations, transaction due diligence, reimbursement compliance and disputes, audits and investigations, and other legal and operational compliance and risk management and legislative and regulatory affairs. She is available to assist your organization in assessing the impact of these developments and navigating the compliance and strategic steps that follow. For more information about these  or other health care, managed care and other health benefits, or other health care developments, please contact Ms. Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.

About the Author

Peer recognized as “Top Rated Lawyer” and “LEGAL LEADER™ “Top Rated Lawyer” and “Best Lawyer” for her work in Health Care Law, Labor and Employment Law; ERISA & Employee Benefits,” and “Business and Commercial Law,” Cynthia Marcotte Stamer is an A Martindale-Hubble “AV-Preeminent” (Top 1%) attorneys board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for her more than 35 years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications including leading edge work on health industry and other workforce and staffing, safety, quality, regulatory affairs, reimbursement, contacting and other health care, managed care, insurance and other operations, risk management, compliance, legislative and regulatory and legislative affairs and other concerns. 

Author of numerous highly regarded works on health care fraud and other compliance, risk management and operations,  Chair of the Tort Trial and Insurance Practice Section Medicine and Law Committee, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, the ABA International Section Life Sciences Committee and the former Group Chair and Welfare Benefit Committee Co-Chair of the ABA RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on health industry legal, public policy and operational concerns. 

Ms. Stamer’s work throughout her career has focused heavily on working with hospitals, health care systems, long term care, rehabilitation, home health, hospice, clinics, and other health care organizations; physician and other provider organizations and practitioners; accreditation, medical staff, peer review, and quality committees and organizations; billing, audit, practice management, utilization management, EMR, claims, payroll and other technology, billing and reimbursement and other services and product vendors and services organizations; pharmaceutical, pharmacy, and prescription benefit management and organizations; DME; health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations; consultants; products and solutions consultants and developers; investors; managed care organizations, self-insured health and other employee benefit plans, their sponsors, fiduciaries, administrators and service providers, insurers and other payers, health industry advocacy and other service providers and groups and other health and managed care industry clients as well as federal and state legislative, regulatory, investigatory and enforcement bodies and agencies on billing and reimbursement, government investigations and enforcement, and other legal and operational compliance and risk management, performance and workforce management, regulatory and public policy, and other legal and operational concerns. 

Author of a multitude of highly regarded publications and presentations,  Ms. Stamer is widely recognized for her thought leadership on these and other health care, managed care and other health plan,and other health industry matters.  In addition, Ms. Stamer contributes her time and leadership to numerous policy, professional, civil and other organizations including service as the, the American Bar Association (ABA) International Section Life Sciences Committee Vice Chair, a Scribe for the ABA Joint Committee on Employee Benefits (JCEB) Annual OCR Agency Meeting and a former Council Representative, Past Chair of the ABA Managed Care & Insurance Interest Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

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