Allos v. Poway Unified School District

Facts

The immunity statute. Government Code section 855.4 is part of the Government Claims Act. Subdivision (a) provides that “[n]either a public entity nor a public employee is liable for an injury resulting from the decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community if the decision whether the act was or was not to be performed was the result of the exercise of discretion vested in the public entity or the public employee, whether or not such discretion be abused.” Subdivision (b) extends immunity to “an injury caused by an act or omission in carrying out with due care a decision described in subdivision (a).” (Allos v. Poway Unified School Dist. (2025) 112 Cal.App.5th 822, 833.) The Act’s purpose is “assur[ing] . . . judicial abstention in areas in which the responsibility for basic policy decisions has been committed to coordinate branches of government.” (Ibid., quoting Greenwood v. City of Los Angeles (2023) 89 Cal.App.5th 851, 863.)

The employee and the request. Kheloud Allos began with Poway Unified School District in 2002 and became a Senior Business Systems Analyst in 2006. She worked from home when the pandemic closed in-person operations in March 2020, and after the stay-at-home order lifted she asked to remain fully remote. On October 15, 2020 she submitted a handwritten doctor’s note stating she “needs to work from home as much as possible due to COVID risk”; at deposition she explained she had asked her physician for the note to keep her elderly mother, with whom she lived, safe. (Allos, supra, 112 Cal.App.5th at pp. 826–827.)

Two years of interactive meetings. The record is unusually detailed on process. At an October 28, 2020 interactive meeting the district agreed she would work in the office 6:30 to 8:30 a.m. and telework the balance of each day. (Allos, supra, 112 Cal.App.5th at p. 827.) Further notes followed: a January 2021 note describing her as primary caregiver for a mother “who has advanced medical conditions which cannot allow her to be by herself”; a February 2021 note asserting she was at “high risk for developing allergies/infections post vaccination,” without explaining her history; and an April 2021 note stating she “needs to work from home due to having a high risk of contracting COVID-19 from underlying medical conditions.” (Id. at pp. 827–828.) At deposition Allos identified her age (65), high blood pressure and obesity as risk factors, and said she could not be vaccinated because of a 2012 allergic reaction to the Tdap vaccine. (Id. at p. 827.)

At an April 23, 2021 meeting the district told her all employees were expected back by May 3 and offered to convert a photo room into a private enclosed office near a restroom on her department’s floor, rather than her cubicle. She responded that she did “not feel comfortable in the office and ‘[would] have fear every day’” of contracting COVID-19 at work. Her counsel argued the vaccine allergy was a disability and that holding an interactive meeting established she was disabled; the district’s attorney answered that the meeting “was not an acknowledgment of a disability” and that the district offered such meetings to any employee reporting a medical reason for not returning, as a “vehicle for getting additional clarifying information.” (Allos, supra, 112 Cal.App.5th at p. 828.)

Four more interactive meetings followed, each producing a negotiated schedule: 50 percent in office through July 2021 (rejected, then settled at one day in office and four remote); four hours in office three days a week from August 2021; 20 hours remote and 20 in office through July 1, 2022; and, after suit was filed, 25 hours in office with a transition to full-time in-office work in January 2023, failing which the district “would place Allos on administrative leave.” (Allos, supra, 112 Cal.App.5th at pp. 829–830.) Allos submitted a retirement request on February 21, 2023, effective June 5, 2023. (Id. at p. 830.)

The medical evidence. The district’s expert, an internal medicine physician, reviewed the records and concluded that Allos did not have a severe Tdap allergy, that nothing suggested an allergy to a COVID-19 vaccine or any ingredient, that her own physician had documented she was unvaccinated “because Allos refused the vaccine, not because of a contraindication,” and that her “mild reaction to the Tdap vaccine does not constitute a functional impairment and does not rise to the level of a disability.” (Allos, supra, 112 Cal.App.5th at pp. 830–831.)

Procedural history

Allos sued on March 15, 2022, pleading FEHA claims for disability discrimination, failure to accommodate, failure to engage in the interactive process, associational discrimination and retaliation, plus Labor Code claims for failure to maintain a safe and healthy workplace and retaliation. (Allos, supra, 112 Cal.App.5th at p. 829.) The district moved for summary judgment in December 2023 on three grounds: no disability; section 855.4 immunity because all claims arose from decisions about mitigating the spread of an infectious disease; and no adverse employment action because the retirement was voluntary. (Id. at p. 830.)

The opposition’s decisive omission. “Allos’s opposition did not address PUSD’s assertion that her claims were barred by section 855.4.” (Allos, supra, 112 Cal.App.5th at p. 831.) The district’s reply pressed exactly that point. Her counsel did argue the statute at the hearing — contending it conflicted with FEHA and the Labor Code — which preserved the issue for appeal, and the court so held in a footnote. (Id. at pp. 831, 834, fn. 6.) The trial court granted the motion, finding the claims barred by section 855.4 and, alternatively, that Allos had “not demonstrated she suffer[ed] from a protected disability that kept her from performing her job,” could not perform all essential functions remotely, and had not experienced an adverse employment action. (Id. at p. 832.)

Review is de novo under the traditional three-step analysis, construing the moving party’s affidavits strictly and the opponent’s liberally. (Allos, supra, 112 Cal.App.5th at p. 832.) Two appellate-burden principles recur throughout and effectively decide the appeal. The first comes from Shamsian: “[w]e are obligated to uphold the trial court’s decision if it is correct on any ground, regardless of the reasons the trial court gave.” (Id. at p. 832, quoting Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 975.) The second comes from Champir: “ ‘to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record. … We may disregard conclusory arguments that are not supported by pertinent legal authority.’ ” (Id. at pp. 832–833, quoting Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th 583, 597.)

Issue

Whether Government Code section 855.4 immunizes a public employer from FEHA and Labor Code claims premised on its decisions to permit remote work during a pandemic and to require a return to in-office work — and, if not, whether the plaintiff raised triable issues on disability, accommodation, the interactive process, associational discrimination, retaliation and her Labor Code claims. (Allos, supra, 112 Cal.App.5th at pp. 832, 836.)

Holding

Reasoning

1. The immunity’s scope is textual and broad. Section 855.4 is an exception to the Government Claims Act’s general structure — public entities immune except as provided by statute, public employees liable except as otherwise provided — and it “provides one such exception to a public entity’s liability under . . . any other statute[].” (Allos, supra, 112 Cal.App.5th at p. 833, quoting Greenwood, supra, 89 Cal.App.5th at p. 858.) The phrase “any other statute” is what makes the provision reach FEHA claims at all, and the court did not analyze whether FEHA is different. Two features do the work: the immunity attaches to the decision, and it applies “whether or not such discretion be abused.” (Id. at p. 833.)

2. Remote-work and return-to-office decisions are disease-control decisions. The district framed the claims as premised on its “decision not to allow employees to work from home 100% of the time following the reopening of schools during the COVID-19 pandemic,” and, in the court’s summary of the district’s position, “PUSD argues this policy choice falls squarely within the immunity afforded by the statute.” (Allos, supra, 112 Cal.App.5th at p. 834.) The court’s own agreement, stated on the same page, is narrower than that argument and is expressly qualified: “We agree with PUSD that to the extent Allos’s claims are based on its decisions to allow employees to work from home and subsequently to require their return to in-office work, the claims are barred by the immunity afforded by section 855.4,” adding that “PUSD’s decisions concerning vaccine requirements are also protected by this immunity.” (Ibid.) That characterization — a staffing and scheduling decision recast as a disease-control decision — is the move a plaintiff must contest, and Allos did not.

3. Why the immunity holding is weaker than it looks. The court said so itself. Its stated basis for affirming on immunity is the absence of reasoned argument, not a considered rejection of a developed challenge: “Critically, Allos’s briefing contains no reasoned argument to explain how her claims fall outside the immunity . . . .” (Allos, supra, 112 Cal.App.5th at p. 834.) It then walked through seven discrete arguments — five in sequence and then what it called “Allos’s final two arguments concerning section 855.4” — and disposed of each on the record or on briefing grounds rather than on the merits of the immunity:

Her contention that the district offered no evidence its policy was not to require vaccination failed because “Allos’s own discovery responses admitted that PUSD did not impose a vaccine mandate,” which “conclusively established this fact” as a judicial admission. (Allos, supra, 112 Cal.App.5th at pp. 834–835, citing Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 48.) Her contention that the statute “does not immunize a public employer from liability stemming from a decision which is inconsistent with a mandatory duty of the employer” — potentially the strongest argument available, since FEHA imposes mandatory duties — was rejected as “conclusory,” providing “no explanation of how PUSD’s decisions were inconsistent with the duties PUSD allegedly violated.” (Id. at p. 835.) Her arguments that “the lack of vaccinated employees in the workplace” was not “the only reason for the harm to her”; that section 855.4 “is designed to address common law claims such as negligence” and “has no role in interpreting the FEHA”; and that because FEHA is “interpreted liberally to effectuate its remedial purpose,” it outweighs “the public policy of the obscure Section … 855.4,” were “legally unsupported” and unaccompanied by citation. (Ibid.) Her final two — that the decisions were not carried out with due care, and that the district made no showing that its decision not to mandate vaccines was to promote the public health — “likewise are not supported by factual citations to the record or any legal authority.” (Ibid.)

Each of those is a live question that a developed brief could join. The mandatory-duty argument in particular was rejected for want of explanation, not because the court held that FEHA duties yield to section 855.4.

4. Forfeiture was expressly rejected. The district argued Allos had waived the point by omitting it from her opposition. The court disagreed in a footnote: because she “did address the statute at the hearing on PUSD’s motion for summary judgment and has briefed the issue in this court,” the issue “was not forfeited for purposes of appeal.” (Allos, supra, 112 Cal.App.5th at p. 834, fn. 6.) The immunity holding therefore is not a forfeiture holding, which makes it citable — and makes the quality of the briefing, not its absence, the operative deficiency.

5. Disability: fear of a vaccine is not a disability on this record. Turning to the alternative grounds, the court applied FEHA’s disjunctive definition of physical disability from Gelfo — a physiological condition affecting a bodily system and limiting a major life activity; a record or history of one; or being regarded or treated as having one. (Allos, supra, 112 Cal.App.5th at p. 836.) It emphasized that “[w]hether an employee is disabled is ultimately a question for the court” and that “an employer is not bound to accept an employee’s subjective belief that she is disabled.” (Id. at pp. 836–837, quoting Hodges v. Cedars-Sinai Medical Center (2023) 91 Cal.App.5th 894, 912–913.) On the evidence — a 2012 reaction consisting of “redness, swelling and pain of upper arm, also some itching,” uneventful earlier vaccinations, and contrary expert testimony — the court concluded that “[t]he fact that Allos had a minor reaction to a vaccine almost 10 years before the COVID-19 vaccines were introduced does not show that her decision not to receive a COVID-19 vaccine was a disability,” and that “no evidence in the record shows Allos was actually unable to get the vaccine.” (Id. at p. 837.) Quoting Hodges: “Clearly, [Allos] could get vaccinated. At best, she chose not to due to risks of unspecified symptoms.” (Id. at p. 837.)

6. The “regarded as” theory, and a policy reason to reject it. Allos argued the district’s six interactive meetings showed it regarded her as disabled. The court answered on three levels: the district’s officials “made clear to Allos they did not view her as disabled”; section 12940, subdivision (n) required an interactive process in response to her request, so holding meetings proves nothing; and adopting her position “would be contrary to public policy” because, as the trial court put it, “employers would be incentivized to be less flexible with employees regarding their requests for accommodations.” (Allos, supra, 112 Cal.App.5th at p. 838.) That reasoning protects employees generally, even though it defeated this plaintiff.

7. The derivative claims. Accommodation and interactive-process claims failed for want of a qualifying disability, since an employer is not “bound to engage in an interactive process with an employee who claimed disability but was neither disabled nor regarded by the employer as being disabled.” (Allos, supra, 112 Cal.App.5th at p. 838, quoting Hodges, supra, 91 Cal.App.5th at p. 913.) A footnote records that the district nonetheless “engaged in an extensive interactive process with Allos over the course of more than two years and offered her significant accommodations over that time.” (Id. at p. 838, fn. 7.)

The associational discrimination claim failed on adverse action. Although the district threatened administrative leave if she did not return full time, “it never placed her on leave,” and “Allos voluntarily retired without any adverse consequence”; her assertion that she was “forced to resign” was conclusory and unsupported. (Allos, supra, 112 Cal.App.5th at p. 839.) The court noted Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028 and its statement that section 12940, subdivision (m) “may reasonably be interpreted to require accommodation based on the employee’s association with a physically disabled person,” but resolved the claim on the adverse-action ground and observed in a footnote that Allos “did not plead a claim for associational failure to accommodate under section 12940, subdivision (m)” at all, pleading instead associational discrimination under section 12926, subdivision (o). (Id. at p. 839 & fn. 8.)

The retaliation claim failed for the same reasons, plus the settled rule that “[t]he employer is not obligated to choose the best accommodation or the accommodation the employee seeks.” (Allos, supra, 112 Cal.App.5th at pp. 839–840, quoting Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228.) The Labor Code claims under sections 6400, 6401, 6310 and 1102.5 each failed because Allos “provides no argument at all as to how the trial court erred,” offering only conclusory assertions. (Id. at pp. 840–841.) On the whistleblower count the court recited the 2014 expansion of section 1102.5, quoting the Ninth Circuit’s account in Killgore v. SpecPro Professional Services, LLC (9th Cir. 2022) 51 F.4th 973, 985, but found no evidence of pretext and no adverse action: “the evidence presented by PUSD established she was never demoted, disciplined, or terminated.” (Id. at p. 841.)

Significance

The decision extends Government Code section 855.4 into the employment setting, applying it to a public employer’s pandemic-era remote-work and return-to-office decisions, and public entities will cite it as a threshold defense to FEHA claims of that kind. It builds on, rather than breaks from, the existing § 855.4 COVID cases the court relied on — City of Los Angeles v. Superior Court (2021) 62 Cal.App.5th 129 and Greenwood v. City of Los Angeles (2023) 89 Cal.App.5th 851 — and the opinion itself makes no claim of first impression. Its practical reach is real: the immunity attaches to the decision, applies even where discretion is abused, and — on the court’s reading of Greenwood — operates against liability “under . . . any other statute.” (Allos, supra, 112 Cal.App.5th at p. 833.)

But the holding should not be overstated, and the opinion supplies the reasons. The court affirmed on immunity because the appellant offered “no reasoned argument” on the point, and it disposed of each of her seven immunity arguments as conclusory, unsupported by the record, or unaccompanied by legal authority. (Allos, supra, 112 Cal.App.5th at pp. 834–835.) It did not hold that FEHA’s mandatory duties yield to section 855.4; it held that this appellant failed to explain why they did not. Nor did it analyze whether a return-to-office mandate is always a “decision . . . to promote the public health of the community by preventing disease” as opposed to an ordinary staffing decision — the district’s characterization went essentially unchallenged.

Two further limits deserve emphasis. The immunity in subdivision (b) protects implementing acts only where they are “carrying out with due care” a protected decision, and Allos’s due-care argument was rejected as unsupported rather than as wrong. (Allos, supra, 112 Cal.App.5th at pp. 833, 835.) And the statute speaks to public entities and public employees; it has no application to private employers.

The alternative holdings have independent value and are, in a sense, more durable because they rest on evidence. The disability ruling — that a decade-old minor vaccine reaction and a fear of an untested allergy do not establish a FEHA disability where the record shows the employee chose not to be vaccinated — extends Hodges and will recur. The “regarded as” ruling is genuinely two-sided: by holding that convening an interactive process is not an admission of disability, the court removed a disincentive to engaging with employees at all, which the opinion frames as serving the policies behind the disability laws. (Allos, supra, 112 Cal.App.5th at p. 838.) And the adverse-action ruling is a reminder that a threatened consequence never imposed, followed by a voluntary retirement, will not by itself support a constructive-discharge theory. (Id. at p. 839.)

A currency note: the opinion was filed June 24, 2025 and certified for publication by a separate order filed July 7, 2025 — the July 7 date is the certification date, not the decision date. The decision is reported at 112 Cal.App.5th 822 [334 Cal.Rptr.3d 425], and every pinpoint in this piece is to the official reports. One item of subsequent history matters and cuts in the district’s favor: a depublication request was denied (S292190, D084062) on the California Supreme Court’s October 15, 2025 conference — so the opinion stands as published authority. Confirm subsequent history with a current citator before relying on the decision.

Key quotes

“We agree with PUSD that to the extent Allos’s claims are based on its decisions to allow employees to work from home and subsequently to require their return to in-office work, the claims are barred by the immunity afforded by section 855.4.” (Allos v. Poway Unified School Dist. (2025) 112 Cal.App.5th 822, 834.)

“Critically, Allos’s briefing contains no reasoned argument to explain how her claims fall outside the immunity afforded by section 855.4.” (Ibid.)

“The district’s decision to hold such meetings to evaluate her asserted disability and request for accommodation was not an admission she was disabled.” (Id. at p. 838.)

“[N]o evidence in the record shows Allos was actually unable to get the vaccine.” (Id. at p. 837.)

“Instead, Allos voluntarily retired without any adverse consequence.” (Id. at p. 839.)

Read the full opinion (CourtListener) →

Practice pointer

Open questions

Does section 855.4 immunize a public entity against FEHA duties on a developed record? The court rejected the mandatory-duty argument as conclusory (Allos, supra, 112 Cal.App.5th at p. 835) and rejected as “legally unsupported” the contention that the statute “has no role in interpreting the FEHA” (id. at p. 16). Neither proposition was decided on the merits.

Where is the boundary of a “disease-control decision”? The district’s characterization of its remote-work and return-to-office decisions as public-health decisions went unchallenged. (Allos, supra, 112 Cal.App.5th at pp. 833–834.) Whether an individualized denial of an accommodation request, as distinct from a district-wide policy, qualifies is undecided.

The due-care limit in subdivision (b). Immunity for implementing acts requires that they be carried out “with due care” (Allos, supra, 112 Cal.App.5th at p. 833), and Allos’s argument on that point was rejected as unsupported (id. at p. 16). What showing defeats subdivision (b) remains open.

Associational failure to accommodate. The court described Castro-Ramirez’s view that section 12940, subdivision (m) “may reasonably be interpreted to require accommodation based on the employee’s association with a physically disabled person,” but did not adopt or reject it, resolving the claim on adverse action and noting the theory was never pleaded. (Allos, supra, 112 Cal.App.5th at p. 839 & fn. 8.)

Remote work as a reasonable accommodation. Because the plaintiff failed at the disability element, the court never reached whether the essential functions of her position could be performed remotely — a question the trial court had answered against her. (Allos, supra, 112 Cal.App.5th at pp. 832, 838.)

A drafting note. The opinion states at page 830 that Allos would transition to full-time in-office work on January 3, 2023, and at page 839 refers to a full-time return “by January 1, 2023.” Nothing in the analysis appears to turn on the difference, and it is noted here so that a reader comparing the two passages is not misled.