Gerardo Gutierrez, an employee of Publix Deli 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 ultimately reconsiders his position and allows employees to wear masks, the 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 on his own from complications from COVID-19 in April. Her adult children could only say goodbye to her by video call.
Now Gutierrez’s family is suing the Lakeland–based supermarket chain, alleging that its decisions regarding worker safety caused the death of their father. The lawsuit, which was filed Monday in Miami-Dade County, echoes the findings of a Tampa Bay Times April 30 report that showed how Publix lagged behind its competitors in adopting employee and customer safety protections during the early days of the pandemic.
The lawsuit also refers to complaints filed with the Occupational Safety and Health Administration, where employees have repeatedly reported that the grocer has banned the use of masks and gloves. Employees told the Times and the Federal Safety and Health Administration that Publix supervisors said using a mask would cause buyers to panic.
Related: Latest in line: Publix lags behind competitors in COVID-19 guarantees
“This is a case that needs to be pursued and that we need to move forward in our justice system and shed light on what Publix was doing and why it was doing it,” said Miami-based family attorney Michael Levine. . “The fact that they are choosing profits over employees is shameful and disappointing.”
Phone calls and emails to members of the Publix communications team requesting comment were not returned on Monday.
In April, Publix told the Times he had followed the guidelines of the Centers for Disease Control and Prevention, which initially discouraged the widespread use of masks by the public. The guidelines were intended to ensure that first responders and healthcare workers had access to them, even if the grocery store workers were making hours of close contact with the crowds.
“We have been, and will continue to be, strongly focused on intensive and continuous protective measures in all of our stores,” Publix spokesperson Maria Brous said at the time.
Gutierrez is survived by four adult children who are claiming more than $ 30,000 in damages.
Colleagues and friends called him “Gerry,” according to a call from GoFundMe set up to raise money for funeral expenses. He had a bright smile and was dedicated to his job. He worked at Publix for almost five years.
“He was a very kind, loving and hardworking man who is greatly missed by many,” his daughter Ariane Gutierrez, 43, of Miami, said in a statement. “He was really loved by the people in his life.”
On March 27 and 28, Gutierrez worked alongside a colleague who had symptoms compatible with COVID-19, according to the lawsuit. The week before, grocery stores like Kroger had already told employees that they were working to secure the masks and that they could use their own cloth masks. Publix’s no-mask policy, at this point, only allowed employees to use masks if they had a doctor’s note.
“Publix knew or should have known that [the coworker] had symptoms compatible with COVID-19 before and / or shortly after arriving for work at the store, but failed to send her home or make sure she did not show up for work, ”says the trial.
Related: Timeline: How Publix’s mask rules have changed since COVID-19 became a pandemic
On March 31, Publix said some workers could use surgical or dust masks, but that did not include deli workers. It also continued to ban the use of cloth masks at a time when it was difficult to obtain disposable face coverings, documents show. Times obtained for its April report.
After his colleague tested positive, Gutierrez was sent home for self-isolation. It was April 2, according to the lawsuit. Four days later he had a cough and a fever. On the same day, April 6, Publix began allowing all employees to wear reusable sheet masks. Gutierrez tested positive for the virus and went to hospital.
On April 28, her children learned that a priest was called to read their last rites to their father. They spoke to him one last time on Zoom.
“The sudden death of our father was a devastating loss for our family,” Ariane Gutierrez said in the statement. “Our family is in shock that Publix is preventing its employees from staying safe. Due to his reckless decisions, our father is not here with us today.
The family of a Walmart employee who died of complications from COVID-19 in Illinois filed a wrongful death lawsuit 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 specializing in labor law, said she expects similar cases to continue to be presented.
“Since the statutes of limitations are quite long for wrongful deaths, there is still a period when we could see them increase,” she said. “Some [attorneys] may want to see what happens with the Publix case first. “
It is not known whether the courts will determine that even with masks, there was no way to completely prevent the spread of the virus. What is happening with the Publix case could set the tone for how other similar cases of COVID-19 are being handled, Guance said.
The lawyer said it could also be difficult to prove that an employee contracted the virus at work. In workers’ compensation claims that address the same issue, Guance said it is about whether the employer has done everything in their power to keep workers safe.
In light of the federal complaints filed against Publix, Guance said it was clear employees did not feel their concerns were taken seriously. She very likely finds that both parties will come to a settlement.
Federal and Florida lawmakers have discussed passing legislation to prevent workers from suing for contracting COVID-19 at work. Senate Speaker Wilton Simpson R-Trilby and House Speaker Chris Sprowls R-Palm Harbor have said they will support legislation that would protect businesses from COVID-19 lawsuits.
“At the end of the day, it’s not going to deter us,” Levine said, referring to potential legislation. “Thinking that they would not let their employees make their own decisions on the port [personal protective equipment], Publix made all these claims that they were keeping workers safe, but they did it differently. “
Levine, who represents the family with his partner Dax Bello, has said so far that he is not dealing with any other similar wrongful death cases.
• • •
HOW CORONAVIRUS SPREADS IN FLORIDA: Find the latest numbers for your county, city or zip code.
FACE MASKS: Read the latest guidelines, tips for comfort and long term wear
GET THE DAYSTARTER MORNING UPDATE: Sign up to receive the most recent information.
LE SCRAPBOOK CORONAVIRUS: We’ve put together your stories, photos, songs, recipes, diaries and more to show what life was like during the pandemic.
HOMAGE TO FLORIDIANS GIVEN BY CORONAVIRUS: They were parents and retirees, policemen and doctors, imperfect but deeply loved.
AN ADVICE?: Send us confidential information
We are working hard to bring you the latest coronavirus news in Florida. This effort takes a lot of resources to collect and update. If you are not yet a subscriber, please consider purchasing a print or digital subscription.