The family of a Miami Beach deli worker who died of coronavirus in April is suing Publix Super Markets Inc., accusing the employer of negligence because it prohibited workers from wearing masks during the onset of the pandemic.
The adult children of Gerardo Gutierrez are pursuing the lawsuit in Miami-Dade Circuit Court after their father contracted COVID-19. Gutierrez became sick and was hospitalized after working beside a co-worker who also tested positive for the coronavirus, according to the complaint filed on Nov. 23.
“Publix did not take timely steps to ensure the use of personal protective equipment by its employees,” the complaint states. “Instead, Publix prohibited its employees from utilizing personal protective equipment, which put them at increased risk of contracting the virus and subsequently dying.”
One of the attorneys representing the Gutierrez family, Michael Levine, said the company effectively took away his freedom to protect himself while on the job last spring.
“One important thing to keep in mind is to think back to March,” Levine told the Florida Record. “Things were closing, people were scared. … It’s astounding that Publix had this policy of no masks.”
The mask and glove prohibition for employees continued through March, according to the complaint, which alleges that Publix feared that allowing their workers to wear personal protective gear would scare customers. The company’s employees were also not able to socially distance from each other on the job, even though the Centers for Disease Control and Prevention issued guidelines supporting that practice in March, according to the complaint.
In addition, the initial ban on masks and gloves was not specific to a single market but was a more general corporate directive, Levine said.
“This is not a manager that went rogue,” he said. “This is a company-wide policy.”
The Gutierrez case should not be difficult to prove, according to Levine. He lived alone at the time when he contracted COVID-19, and because many businesses in the state were shut down then, Gutierrez was usually either at work or at home, the attorney said.
“The important thing here is the jurors,” Levine said, adding that they will understand how pivotal the Publix mask decision was in Gutierrez’ life.
Publix did not respond to requests for comment.
The case is unusual because relatively few lawsuits involving employee exposure to COVID-19 in the workplace have been filed in the United States, according to a COVID-19 tracker that’s maintained by the Hunton Andrews Kurth law firm. The tracker indicates that insurance-related cases, including those involving businesses with business-interruption insurance, make up the largest category of coronavirus litigation filed nationwide.