Gerardo Gutierrez, a Publix deli employee in Miami Beach, asked to wear a mask to work when the pandemic began.
But Publix said no, according to a lawsuit filed by his family.
Although the Florida grocer would eventually flip its stance and allow employees to wear masks, that change came too late for the 70-year-old father of four. He was already at home sick by the time Publix allowed all of its employees to use them.
Gutierrez died alone from complications related to COVID-19 in April. His adult children could only say goodbye to him over a video call.
Now, Gutierrez’s family is suing the Lakeland-based supermarket chain, alleging its decisions regarding worker safety caused their father’s death. The lawsuit, which was filed in Miami-Dade County on Monday, echoes the findings from a Tampa Bay Times report from April 30 that showed how Publix lagged behind competitors in adopting employee and customer safety protections during the early days of the pandemic.
The lawsuit also references complaints made to the Occupational Safety and Health Administration, where employees repeatedly reported the grocer prohibited mask and glove use. Employees told the Times and the federal safety and health administration that Publix supervisors said mask use would cause shoppers to panic.
“This is a case that needs to be prosecuted and that we need to push forward in our court system and shed light on what Publix was doing and why they were doing it,” said the family’s Miami-based attorney, Michael Levine. “The fact the they would chose profits over employees is shameful and disappointing.”
Phone calls and emails to members of the Publix communications staff seeking comment were not returned on Monday.
In April, Publix told the Times it had followed Centers for Disease Control and Prevention guidelines, which initially discouraged widespread public use of masks. The guidance was meant to ensure that first responders and health care workers had access to them, even as grocery workers logged hours in close contact with crowds.
“We have been, and will continue to be, keenly focused on intensive, ongoing protective measures in all our stores,” Publix spokeswoman Maria Brous said at that time.
Gutierrez is survived by four adult children who are suing for more than $30,000 in damages.
Coworkers and friends called him “Gerry,” according to a GoFundMe appeal put together to raise money for funeral costs. He had a bright smile and was dedicated to his job. He worked at Publix for nearly five years.
“He was a very kind, loving and hardworking man that is greatly missed by many,” his daughter, Ariane Gutierrez, 43, of Miami, said in a statement. “He was truly loved by the people in his life.”
On March 27 and 28, Gutierrez worked alongside a co-worker who was showing symptoms consistent with COVID-19, according to the lawsuit. The week before, grocery stores such as Kroger had already told employees they were working to secure masks and that they could use their own cloth masks. Publix’s no-mask policy, at that point, only allowed for employees to use masks if they had a doctor’s note.
“Publix knew or should have known that [the coworker] was exhibiting symptoms consistent with COVID-19 prior to and/or soon after her arrival for work at the store, but failed to send her home or ensure that she did not present for work,” the lawsuit says.
By March 31, Publix said some workers could use surgical or dust masks but this did not include deli employees. It also continued to bar the use of fabric masks at a time it was difficult to obtain disposable face coverings, according to documents the Times obtained for its April report.
After his co-worker tested positive, Gutierrez was sent home to isolate. That was April 2, according to the lawsuit. Four days later, he had a cough and fever. That same day, April 6, Publix began allowing all employees to wear reusable cloth masks. Gutierrez tested positive for the virus and went to the hospital.
On April 28, his children were told a priest was being called to read their father his last rites. They talked to him one last time over Zoom.
“The sudden passing of our father has been a devastating loss to our family,” Ariane Gutierrez said in the statement. “Our family is in shock that Publix would prevent its employees from staying safe. Because of its careless decisions, our father is not here with us today.”
The family of a Walmart employee who died from COVID-19 complications in Illinois filed a wrongful death lawsuit there in April. Tyson Foods is also facing a wrongful death lawsuit over an outbreak at one of its meat-processing plants in Iowa.
Meredith Gaunce, a St. Petersburg lawyer who focuses on employment law, said she expects similar cases to continue getting brought forward.
“Because the statute of limitations are fairly long for wrongful deaths, there is still a period of time where we could see these on the rise,” she said. “Some [attorneys] may want to see what happens with the Publix case first.”
It is unclear whether the courts will determine that even with masks, there was no way to completely prevent the spread of the virus. What happens with the Publix case could set the tone for how other similar COVID-19 cases are treated, Guance said.
The lawyer said it could also be challenging to prove an employee contracted the virus at work. In workers compensation claims that grapple with the same question, Guance said a it has come down to whether the employer did everything in their power to keep workers safe.
Given the federal complaints filed against Publix, Guance said it was clear employees didn’t feel as though their concerns were being taken seriously. She finds it most likely the two parties will reach a settlement.
Federal and Florida lawmakers have discussed passing legislation to prevent workers from suing over contracting COVID-19 on the job. Senate President Wilton Simpson, R-Trilby, and House Speaker Chris Sprowls, R-Palm Harbor, have said they would support legislation that would protect businesses from lawsuits related to COVID-19.
“Ultimately, that’s not going to deter us,” Levine said, referring to potential legislation. “To think they wouldn’t let their employees make their own decisions on wearing [personal protective equipment], Publix made all these statements that they were keeping workers safe but they did otherwise.”
Levine, who is representing the family with partner Dax Bello, said at this time he is not handling any other similar wrongful death cases.
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